•"*****''  — 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


CASES  ON  THE  LAW  OF  PROPERTY 

VOL.     L 

PERSONAL  PROPERTY. 

By  Harry  A.  Bigelow,  Professor  of  Law  in  the 
University  of  Chicago. 

VOL.    II. 

RIGHTS  IN  ANOTHER'S  LANDS. 

By  Harry  A.  Bigelow. 

VOL.  III. 

TITLES  TO  REAL  PROPERTY. 

By  Ralpli  W.   Aigler,  Professor  of  Law  in  the 
Univorsity    of   Michigan. 

VOL.  IV. 

FUTURE  INTERESTS. 

By  Albert  M.  Kales,  of  the  Chicago  Law,  former- 
ly Professor  of  Law  in  Harvard  University. 

VOL.   V. 

WILLS,  DESCENT,  AND  ADMINISTRA- 

TION. 

By  George  P.  Costigan,  Jr.,  Professor  of  Law  in 
Northwestern  University. 

4  KLales  Prop.  (ii) 


CASES  ON  THE  LAW  OF  PROPERTY 
VOLUME  4 

FUTURE  INTERESTS 

AND 

ILLEGAL   CONDITIONS  AND 
RESTRAINTS 


BY  ALBERT  M.  KALES 

OF  THE    CHICAGO    BAE 


AMERICAN  CASEBOOK  SERIES 

WILLIAM  R.  VANCE 

GENERAL   EDITOR 


ST.    PAUL 

WEST  PUBLISHING  COMPANY 
1918 


COPYKIGHT   1918 
BY 

WEST  PUBLISHING  COMPANY 
(4  Kales  Prop.) 


THE  AMERICAN  CASEBOOK  SERIES 


The  first  of  the  American  Casebook  Series,  Mikell's  Cases  on  Crim- 
inal Law,  issued  in  December,  1908,  contained  in  its  preface  an  able 
argument  by  Mr,  James  Brown  Scott,  the  General  Editor  of  the  Se- 
ries, in  favor  of  the  case  method  of  law  teaching.  Until  1915  this 
preface  appeared  in  each  of  the  volumes  published  in  the  series. 
But  the  teachers  of  law  have  moved  onward,  and  the  argument 
that  was  necessary  in  1908  has  now  become  needless.  That  such 
is  the  case  becomes  strikingly  manifest  to  one  examining  three  im- 
portant documents  that  fittingly  mark  the  progress  of  legal  education 
in  America.  In  1893  the  United  States  Bureau  of  Education  pub- 
lished a  report  on  Legal  Education  prepared  by  the  American  Bar  As- 
sociation's Committee  on  Legal  Education,  and  manifestly  the  work 
of  that  Committee's  accomplished  chairman,  William  G.  Hammond, 
in  which  the  three  methods  of  teaching  law  then  in  vogue — that  is,  by 
lectures,  by  text-book,  and  by  selected  cases — were  described  and  com- 
mented upon,  but  without  indication  of  preference.  The  next  report 
of  the  Bureau  of  Education  dealing  with  legal  education,  published 
in  1914,  contains  these  unequivocal  statements: 

"To-day  the  case  method  forms  the  principal,  if  not  the  exclusive, 
method  of  teaching  in  nearly  all  of  the  stronger  law  schools  of  the 
country.  Lectures  on  special  subjects  are  of  course  still  delivered  in 
all  law  schools,  and  this  doubtless  always  will  be  the  case.  But  for 
staple  instruction  in  the  important  branches  of  common  law  the  case 
has  proved  itself  as  the  best  available  material  for  use  practically  ev- 
erywhere. *  *  *  The  case  method  is  to-day  the  principal  method 
of  instruction  in  the  great  majority  of  the  schools  of  this  country." 

But  the  most  striking  evidence  of  the  present  stage  of  development 
of  legal  instruction  in  American  Law  Schools  is  to  be  found  in  the 
special  report,  made  by  Professor  Redlich  to  the  Carnegie  Foundation 
for  the  Advancement  of  Teaching,  on  "The  Case  Method  in  American 
Law  Schools."  Professor  Redlich,  of  the  Faculty  of  Law  in  the  Uni- 
versity of  Vienna,  was  brought  to  this  country  to  make  a  special  study 
of  methods  of  legal  instruction  in  the  United  States  from  the  stand- 
point of  one  free  from  those  prejudices  necessarily  engendered  in 
American  teachers  through  their  relation  to  the  struggle  for  supremacy 
so  long,  and  at  one  time  so  vehemently,  waged  among  the  rival  sys- 
tems.    From  this  masterly  report,  so  replete  with  brilliant  analysis 

(V) 


6710^2 


Vi  PREFACE 

and  discriminating  comment,  the  following  brief  extracts  are  taken. 
Speaking  of  the  text-book  method  Professor  Redlich  says : 

"The  principles  are  laid  down  in  the  text-book  and  in  the  profes- 
sor's lectures,  ready  made  and  neatly  rounded,  the  predigested  essence 
of  many  judicial  decisions.  The  pupil  has  simply  to  accept  them  and 
to  inscribe  them  so  far  as  possible  in  his  memory.  In  this  way  the 
scientific  element  of  instruction  is  apparently  excluded  from  the  very 
first.  Even  though  the  representatives  of  this  instruction  certainly  do 
regard  law  as  a  science — that  is  to  say,  as  a  system  of  thought,  a  group- 
ing of  concepts  to  be  satisfactorily  explained  by  historical  research  and 
logical  deduction — they  are  not  willing  to  teach  this  science,  but  only 
its  results.  The  inevitable  danger  which  appears  to  accompany  this 
method  of  teaching  is  that  of  developing  a  mechanical,  superficial  in- 
struction in  abstract  maxims,  instead  of  a  genuine  intellectual  probing 
of  the  subject-matter  of  the  law,  fulfilling  the  requirements  of  a 
science." 

Turning  to  the  case  method  Professor  Redlich  comments  as  follows : 
"It  emphasizes  the  scientific  character  of  legal  thought ;  it  goes  now 
a  step  further,  however,  and  demands  that  law,  just  because  it  is  a 
science,  must  also  be  taught  scientifically.  From  this  point  of  view  it 
very  properly  rejects  the  elementary  school  type  of  existing  legal  edu- 
cation as  inadequate  to  develop  the  specific  legal  mode  of  thinking,  as 
inadequate  to  make  the  basis,  the  logical  foundation,  of  the  separate 
legal  principles  really  intelligible  to  the  students.  Consequently,  as  the 
method  was  developed,  it  laid  the  main  emphasis  upon  precisely  that 
aspect  of  the  training  which  the  older  text-book  school  entirely  neg- 
lected— the  training  of  the  student  in  intellectual  independence,  in  in- 
dividual thinking,  in  digging  out  the  principles  through  penetrating 
analysis  of  the  material  found  within  separate  cases ;  material  which 
contains,  all  mixed  in  with  one  another,  both  the  facts,  as  life  creates 
them,  which  generate  the  law,  and  at  the  same  time  rules  of  the  law 
itself,  component  parts  of  the  general  system.  In  the  fact  that,  as  has 
been  said  before,  it  has  actually  accomplished  this  purpose,  lies  the 
great  success  of  the  case  method.  For  it  really  teaches  the  pupil  to 
think  in  the  way  that  any  practical  lawyer — whether  dealing  with  writ- 
ten or  with  unwritten  law — ought  to  and  has  to  think.  It  prepares  the 
student  in  precisely  the  way  which,  in  a  country  of  case  law,  leads  to 
full  powers  of  legal  understanding  and  legal  acumen ;  that  is  to  say, 
by  making  the  law  pupil  familiar  wath  the  law  through  incessant  prac- 
tice in  the  analysis  of  law  cases,  where  the  concepts,  principles,  and 
rules  of  Anglo-American  law  are  recorded,  not  as  dry  abstractions,  but 
as  cardinal  realities  in  the  inexhaustibly  rich,  ceaselessly  fluctuating, 
social  and  economic  life  of  man.  Thus  in  the  modern  American  law 
school  professional  practice  is  preceded  by  a  genuine  course  of  study, 
the  methods  of  which  are  perfectly  adapted  to  the  nature  of  the  com- 
mon law." 


PREFACE  Vll 

The  general  purpose  and  scope  of  this  series  were  clearly  stated  in 
the  original  announcement : 

"The  General  Editor  takes  pleasure  in  announcing  a  series  of  schol- 
arly casebooks,  prepared  with  special  reference  to  the  needs  and  limi- 
tations of  the  classroom,  on  the  fundamental  subjects  of  legal  educa- 
tion, which,  through  a  judicious  rearrangement  of  emphasis,  shall  pro- 
vide adequate  training  combined  with  a  thorough  knowledge  of  the 
general  principles  of  the  subject.  The  collection  will  develop  the  law 
historically  and  scientifically ;  English  cases  will  give  the  origin  and 
development  of  the  law  in  England ;  American  cases  will  trace  its  ex- 
pansion and  modification  in  America ;  notes  and  annotations  will  sug- 
gest phases  omitted  in  the  printed  case.  Cumulative  references  will  be 
avoided,  for  the  footnote  may  not  hope  to  rival  the  digest.  The  law 
will  thus  be  presented  as  an  organic  growth,  and  the  necessary  con- 
nection between  the  past  and  the  present  will  be  obvious. 

"The  importance  and  difficulty  of  the  subject  as  well  as  the  time  that 
can  properly  be  devoted  to  it  will  be  carefully  considered  so  that  each 
book  may  be  completed  within  the  time  allotted  to  the  particular  sub- 
ject. *  *  *  If  it  be  granted  that  all,  or  nearly  all,  the  studies  re- 
quired for  admission  to  the  bar  should  be  studied  in  course  by  every 
student — and  the  soundness  of  this  contention  can  hardly  be  seriously 
doubted — it  follows  necessarily  that  the  preparation  and  publication  of 
collections  of  cases  exactly  adapted  to  the  purpose  would  be  a  genuine 
and  by  no  means  unimportant  service  to  the  cause  of  legal  education. 
And  this  result  can  best  be  obtained  by  the  preparation  of  a  systematic 
series  of  casebooks  constructed  upon  a  uniform  plan  under  the  super- 
vision of  an  editor  in  chief.     *     *     * 

"The  following  subjects  are  deemed  essential  in  that  a  knowledge  of 
them  (with  the  exception  of  International  Law  and  General  Juris- 
prudence) is  universally  required  for  admission  to  the  bar : 

Administrative  Law.  Evidence. 

Agency.  Insurance. 

Bills  and  Notes.  International  Law. 

Carriers.  Jurisprudence. 

Contracts.  Mortgages. 

Corporations.  Partnership. 

Constitutional  Law.  Personal  Property. 

Criminal  Law.  r>     i   o  ^      f  ^^^  ^^^'■• 

r^  ■    ■     ,  T,         J  Keal  Property.  4  2d 

Crimmal  Procedure.  (_  3d 

Common-Law  Pleading.  Public  Corporations. 

Conflict  of  Laws.  Quasi  Contracts. 

Code  Pleading.  Sales. 

Damages.  Suretyship. 

Domestic  Relations.  Torts. 

Equity.  Trusts. 

Equity  Pleading.  Wills  and  Administration. 


VIU  PREFACE 

"International  Law  is  included  in  the  list  of  essentials  from  its  in- 
trinsic importance  in  our  system  of  law.  As  its  principles  are  simple 
in  comparison  with  municipal  law,  as  their  application  is  less  technical, 
and  as  the  cases  are  generally  interesting,  it  is  thought  that  the  book 
may  be  larger  than  otherwise  would  be  the  case. 

"The  preparation  of  the  casebooks  has  been  intrusted  to  experienced 
and  well-known  teachers  of  the  various  subjects  included,  so  that  the 
experience  of  the  classroom  and  the  needs  of  the  students  will  furnish 
a  sound  basis  of  selection." 

Since  this  announcement  of  the  Series  was  first  made  there  have 
been  published,  or  put  in  press,  books  on  the  following  subjects: 

Administrative  Law.     By  Ernst  Freund,   Professor  of  Law  in  the 

University  of  Chicago. 
Agency.    By  Edwin  C.  Goddard,  Professor  of  Law  in  the  University 

of  Michigan. 
Bills  and  Notes.    By  Howard  L.  Smith,  Professor  of  Law  in  the  Uni- 
versity of  Wisconsin,  and  William  U.  Moore,  Professor  of  Law 

in  the  Columbia  University. 
Carriers.    By  Frederick  Green,  Professor  of  Law  in  the  University  of 

Illinois. 
Conflict  of  Laws.    By  Ernest  G.  Lorenzen,  Professor  of  Law  in  the 

University  of  Minnesota. 
Constitutional  Lazv.     By  James  Parker  Hall,  Dean  of  the  Faculty  of 

Law  in  the  University  of  Chicago. 
Corporations.    By  Harry  S.  Richards,  Dean  of  the  Faculty  of  Law  in 

the  University  of  Wisconsin. 
Criminal  Laiv.     By  William  E.  Mikell,  Dean  of  the  Faculty  of  Law  in 

the  University  of  Pennsylvania. 
Criminal  Procedure.    By  William  E.  Mikell,  Dean  of  the  Faculty  of 

Law  in  the  University  of  Pennsylvania. 
Damages.    By  Floyd  R.  Mechem,  Professor  of  Law  in  the  University 

of  Chicago,  and  Barry  Gilbert,  Professor  of  Law  in  the  Uni- 
versity of  Illinois. 
Equity.     By  George  H.  Boke,  Professor  of  Law  in  the  University  of 

California. 
Insurance.     By  W.  R.  Vance,  Dean  of  the  Faculty  of  Law  in  the 

University  of  Minnesota. 

Legal  Ethics,  Cases  and  Other  Authorities  on.  By  George  P.  Costigan, 
Jr.,  Professor  of  Law  in  the  Northwestern  University. 

Partnership.  By  Eugene  A.  Gilmore,  Professor  of  Law  in  the  Uni- 
versity of  Wisconsin. 

Persons  (including  Marriage  and  Divorce).  By  Albert  M.  Kales,  Pro- 
fessor of  Law  in  the  Northwestern  University,  and  Chester  G. 
Vernier,  Professor  of  I^aw  in  the  University  of  Illinois. 


PREFACE  IX 

Pleading  {Common  Lazv).  By  Clarke  B.  Whittier,  Professor  of  Law 
in  the  Stanford  University,  and  Edmund  M.  Morgan,  Professor 
of  Law  in  the  University  of  Minnesota. 

Property  (Titles  to  Real  Property).  By  Ralph  W.  Aigler,  Professor 
of  Law  in  the  L'niversity  of  Michigan. 

Property  {Personal).  By  Harry  A.  Bigelow,  Professor  of  Law  in  the 
University  of  Chicago. 

Property  (Wills,  Descent,  and  Administration) .  By  George  P.  Costi- 
gan,  Jr.,  Professor  of  Law  in  the  Northwestern  University. 

Property  (Future  Interests).  By  Albert  M.  Kales,  Professor  of  Law 
in  the  Northwestern  University. 

Quusi  Contracts.  By  Edward  S.  Thurston,  Professor  of  Law  in  the 
University  of  Minnesota. 

Sales.  By  Frederic  C.  Woodward,  Professor  of  Law  in  the  University 
of  Chicago. 

Suretyship.  By  Crawford  D.  Hening,  Professor  of  Law  in  the  Uni- 
versity of  Pennsylvania. 

Torts.  By  Charles  M.  Hepburn,  Professor  of  Law  in  the  University 
of  Indiana. 

Trusts.  By  Thaddeus  D.  Kenneson,  Professor  of  Law  in  the  Univer- 
sity of  New  York. 

Wills  and  Administration.  By  George  P.  Costigan,  Jr.,  Professor  of 
Law  in  the  Northwestern  University. 

It  is  earnestly  hoped  and  believed  that  the  books  thus  far  published 
in  this  series,  with  the  sincere  purpose  of  furthering  scientific  training 
in  the  law,  have  not  been  without  their  influence  in  bringing  about  a 
fuller  understanding  and  a  wider  use  of  the  case  method. 

The  following  well-known  teachers  of  law  are  at  present  actively 
engaged  in  the  preparation  of  casebooks  on  the  subjects  indicated  be- 
low: 
Edward  W.  Hinton,  Professor  of  Law  in  the  University  of  Chicago. 

Subject,  Evidence. 
Arthur  L.  Corbin,  Professor  of  Law  in  the  Yale  University.    Subject, 

Contracts. 
James  Brown   Scott,   Professor  of  International   Law  in  the  Johns 

Hopkins  University.     Subject,  International  Lazv. 
A.  M.  Cathcart,  Professor  of  Law  in  the  Stanford  University.     Sub- 
ject, Code  Pleading. 
Harry  A.  Bigelow,  Professor  of  Law  in  the  University  of  Chicago. 
Subject,  Property  (Rights  in  Another's  Lands). 

William  R.  Vaxce, 

General  Editor. 
January,  1918. 


AUTHOR'S  PREFATORY  NOTE 


This  collection  of  cases  for  the  American  Casebook  Series  is  an  abridg- 
ment of  a  larger  casebook,  also  published  by  the  West  Publishing  Com- 
pany, covering  more  fully  the  same  subjects  as  are  here  presented.  The 
larger  edition  contains  approximately  twice  as  many  pages  and  is  de- 
signed to  serve  a  course  for  which  two  lectures  a  week  are  assigned. 
This  abridged  edition  is  suitable  for  a  course  of  two  lectures  each  week 
for  half  a  year. 

Both  the  larger  and  smaller  editions  are  designed  for  use  with  Profes- 
sor Aigler's  casebook  on  Titles,  published  in  the  American  Casebook 
Series.  Professor  Aigler's  collection  includes  the  subjects  of  dower, 
curtesy,  joint  ownership,  fraudulent  conveyances,  and  registration,  and 
these  subjects  have  therefore  been  omitted  from  both  the  larger  arid  the 
abridged  edition  of  this  casebook  on  Future  Interests. 

The  compiler  of  these  cases  in  this  preface  (as  also  in  the  preface  to 
the  larger  edition)  acknowledges  his  great  indebtedness  to  the  Harvard 
Law  School,  first,  for  the  privilege  of  using  Mr.  Gray's  collection  of 
cases  in  preparing  the  manuscript  for  this  work ;  and,  second,  the  op- 
portunity of  giving  at  the  Harvard  Law  School  during  the  year  1916- 
1917,  the  course  known  as  Property  111,  and  in  this  way  testing  with 
the  class  the  effectiveness  of  the  arrangement  and  cases  now  presented. 

It  is  the  desire  of  the  compiler,  through  this  abridged  edition,  as  well 
as  through  the  larger  edition,  that  Mr.  Gray's  collection  of  cases  and 
his  analysis  of  the  subjects  dealt  with  should  continue  to  live  and  serve 
the  great  body  of  law  students  of  the  country,  and  that  the  present 
work,  in  the  abridged  edition  as  well  as  the  larger  one,  while  it  must 
bear  another's  name,  should  play  an  important  part  in  achieving  that 

e"d-  Albert  M.  Kales. 

Cambbidge,  June  1,  1917. 

(xi)* 


TABLE  OF  CONTENTS 


PART  I 
Classification  of  Future  Interests 

CHAPTER  I 

Rights  of  Entry  fob  Condition  Broken 

Section  Page 

1 .  Validity  and   Construction 1 

2.  Who  may  Take  Advantage  of  the  Breach  of  Condition 5 

3.  Mode  of  Perfecting  a  Forfeiture 10 

4.  Relief   Against    Forfeiture 12 

I.     License    12 

11.    Waiver 15 

CHAPTER  II 
Escheat  and  Possibilities  of  Reverter 20 

CHAPTER  III 
Reversions,  Vested  Remainders  and  Executory  Interests 30 

CHAPTER  IV 

Contingent  Remainders 

1.  Validity    41 

2.  Construction    66 

3.  Alienability    '. 81 

CHAPTER  V 
Limitations   to  Classes 9G 

CHAPTER  VI 

Freehold  Interests'  Subject  to  a  Term 103 

CHAPTER  VII 
Rule  in  Shelley's  Case 110 

CHAPTER  VIII 
Future  Interests  in  Personal  Property 

1.  Chattels    Real 145 

2.  Personal  Property  Other  than  Chattels  Real 171 

4  Kales  Prop.  (xiii) 


xiv  TABLE   OF  CONTENTS 

PART    II 

COXSTRUCTIOX    OF    LIMITATIONS 

Section                                                         CHAPTER  I  Page 

Introduction    1S4 

CHAPTER  II 

Meaning  of  Heirs  in  a  Limitation  to  tjie  Testator's  Heirs  or  the 
Heirs  of  a  Living  Person 190 

CHAPTER  III 
"Survivor"  Construed  vs.   "Other" 197 

CHAPTER  IV 
Vesting   of   Legacies 204 

CHAPTER  V 

Guts  Over  Upon  the  Death  of  a  Previous  Taker  Simpliciter,  or 
Without  Children,  or  Without  Issue  Surviving  the  First 
Taker    235 

CHAPTER  VI 
Gifts  on  Failure  of  Issue 245 

CHAPTER  VII 
Implication   of  Cross-Limitations 256 

CHAPTER  VIII 
Determination    of   Classes « 257 

CHAPTER  IX 

Divesting  Contingencies  and  Conditions  Precedent  to  the  Taking 
Effect  of  Executory  Devises  and  Bequests 

1.  Failure  of  Executory  Devise  or  Bequest 279 

2.  Failure  of  Preceding  Interest 292 

:).     Acceleration    29S 


TABLE   OF   CONTENTS  XV 

PART    III 

Powers 

„    ,.  CHAPTER  I 

Section  Page 

Operation,  Classification,  Release  and  Discharge 301 

CHAPTER  II 

Contracts  to  Appoint  and  Appointments  in  Fraud  of  the  Power.  .  315 

CHAPTER  III 
ScRvivAL    OF   Powers 333 

CHAPTER  IV 
Powers  in  Trust  and  Gifts  Implied  in  Default  of  Appointment.  .  344 

CHAPTER  V 
Appointed  Property  as  Assets 357 

CHAPTER  VI 
Defective    Execution 365 

CHAPTER  VII 
What  Words  Exercise  a  Power 379 

CHAPTER  VIII 
Powers  in  Life  Tenants  to  Dispose  of  the  Fee 401 


PART  IV 
Rules  Against   Perpetuities 

CHAPTER  I 
The  Rule  and  Its  Corollaries 40S 

CHAPTER  II 
Interests  Subject  to  the  Rule 4G1 

CHAPTER  III 

The  Rule  Against  Perpetuities  Distinguished  from  the  Rule 
Which  makes  Void  Restraints  on  Alienation,  and  Provisions 
Requiring  a  Trusteeship  (Otherwise  Valid)  to  be  Effective  at 

Too  RE^roTE  a  Time 407 

4  Kales  Prop. — b 


XVi  TABLE   OF    CONTENTS 

Sfectlon  CHAPTER  IV  Page 

Limitations   to    Classes 519 

CHAPTER  V 

Sepabable  Limitations,  Independent  Gifts,  and  Limitations  to  a 
Series   533 

CHAPTER  VI 
Modifying    Clauses 557 

CHAPTER  VII 
Powers 563t 

CHAPTER  VIII 
Charities    57S 


PART  V 
Illegai.  Conditions  and  Re;straints 

chapter  i 

Forfeiture  of  Estates  of  Inheritance 

1.  On    Alienation 597 

2.  On  Failure  to  Alienate 607 

CHAPTER  II 
Forfeiture  on  Alienation  of  Estates  for  Life  and  for  Tears.  ...  636 

CHAPTER  III 

Restraints  on  the  Alienation  of  Estates  of  Inheritance 648 

CHAPTER  IV 
Restraints  on  the  Alienation  of  Estates  for  Life  and  for  Years  662 

CHAPTER  V 

Indestructible  Trusts  of  Absolute  and  Indefeasible  Equitable 
Interests    695 

CHAPTER  VI 
Illegal  and  Impossible  Conditions 703 


TABLE    OF  CASES 

[titles  of  cases  printed  uerein  are  set  in  ordinary  type,    cases  cited  in 
footnotes  abe  indicated  by  italics.] 


Page 

Abbiss  V.  Burnev 449 

Abbott  V.  Bradstrect 192,  193 

Abbott  V.  Essex  Co 246 

Abbott  V.  Jenkins 45,  77 

AbeVs   Case 110 

Abrams  v.  Watson 25 

Adams  v.  Savage lOG 

Adams  v.  Yakntitie 3 

Adams*   Trust 237 

Adamson,  In  re 651 

.^tna  Life  Ins.  Co.  v.  Hoppin.  .88,  130 
JEtna  Life  Ins.  Co.  v.  Hoppin.  .32,  45 

Airey  v.  Boicer 399 

Alexander  v.  Masonic  Aid  Ass'n. .  193 

Allen,  Matter  of 264 

Allison  V.  Allison 192,  193 

Ambler  v.  Woodbridge 23 

Ames  V.  Cadogan 391 

Amory  v.  Meredith 396 

Amory  v.  Meredith 399 

Anderson  v.  Anderson 136 

Anderson  v.  Carj^ 651 

Anderson  v.  Jackson 246 

Anderson  v.  Menifee 232 

Andre ii;  v.  Andrei'- 297 

Andrei's  v.  Lincoln 204,  232 

Andrews  v.  Partington 265 

Afidreics  v.   Yoye 611,  630 

Angus  v.  Noble 506 

Annin's  Ex'rs  v.  Vandoren's  Adm'r  626 

Anonymous 175 

Anonymous 171,  600,  635 

Archer  v.  Brockschmidt 143 

Archer  v.  Jacobs 99 

Archer's  Case 43,  116 

Archer's  Case 42,  45 

Armstrong  v.  Barber 517 

Armstrong  v.  Kent 635 

Arnold  v.  Woodhams 651 

Ashforth,  In  re 4S5 

Ashley    v.    Ashley 444 

Ashley  v.  Ashley 257 

Ashmore's  Trusts,  In  re 225 

Ashto)i's  Estate,  In  re 193 

Askeiv  V.  Askew 198,  257 

Astley  V.  Micklethicait 50,  58 

Atkins  V.  Hiccocks 207 

Atkinson  v.  Barton 257 

Atkinson  v.  Doivling 307,  312 

4  Kales  Prop.  (xy 


Page 
Attorney  General  v.  Corporation  of 

South  Mmdton 3 

Attorney  General  v.  Gleg 343 

Attorney  General  v.  Hall 608 

Attorney    General   v.    Merrimack 

Mfg.   Co 4 

Attorney  General  v.  Wax  Chand- 
lers Co 3 

Attaater  v.  Attwater 599 

Atwaters  v.  Birt 3.34 

Augustus  V.  Seabolt 299 

Austin  V.  Cambridge  Port  Parish.. 4,  10 

Averill,  In  re 276 

Avem  V.  Lloyd 446 

Avery  v.  New  York  Cent,  etc.,  R. 

Co a 

Avery  v.  U.  S 4 

Ayer  v.   Aycr 634 

Ayling  v.  Kramer 3 

Ayton  V.  Ay  ton 260 

Bacon,  In  re 343 

Badger  v.   Gregory 198 

Baggett  V.  Meiix 650 

Bagshaw  v.  Spencer 113 

Bailey  v.  Morris 45 

Bails  V.  Davis 116 

Bainton  v.  Ward 362 

Baleh  V.  Pickering 201 

Ballance  v.  Fortier 2 

Bangs  v.  Sm ith 399 

Banks  v.  Easkie 468 

Barber's  Will.  In  re 192 

Barclay  v.  Piatt 32 

Barker  v.  Barrows 4 

Barlow  v.  Barlow 136 

Barlotc  v.  Salter 255 

Barnitz  v.  Casey 86 

Barr  v.  Gardner 55 

Barrett   v.   Barrett 291 

Bartholomew,  In  re 204 

Barton  v.  Barton 617 

Barton  v.  Briscoe 314,  651 

Barton  v.  Thaw 475 

Bastard  v.  Proby 115 

Bateman  v.  Faher 651 

Batcman  v.  Gray 265 

Bates  v.   Gillett 67 

Batsford  v.  Kebbell 218 

ii) 


xvni 


TABLE  OF  CASES 


Pago 

Bax  V.  Whithrcad 332 

Bayley  v.  Morris 11^ 

Bvachcroft  v.  Broome <''f>'^ 

Bcnrd  v.  Wcstcott -^7 

Bcckton  V.  Barton --^J 

Bcldinff  V.  J'orsous 5J> 

Belficid  V.  Booth 532 

Bell  r.  Bair fi51 

Belmont  v.  O'Brien 343 

Bcnee,  In  re 54S 

Betwough  r.  Edridge 430 

Bennett  v.  Bennett 143 

Bennett  r.  Morris 45.  55 

Benton.  In  re 650 

Bergman  v.  Arnhold 75 

Berrien  v.  Berrien 335 

Berry  v.  Williamson 115 

Beverley's   Case 110 

Beyfus  v.  Lawley 332,  361 

Bey f us  v.  Lawley 364 

Bibhem  v.  Potter 237 

Bieldey  v.  Guest 311 

Bi{]elow  V.  Cady 505 

Bilderhack  v.  Boyce 390 

Bindon  (Lord)  v.  Earl  of  Suffolk 

237,  238 

Bingha/m's  Appeal 390 

Bird  V.  Luekie 196 

Black  more  v.  Boardman 468 

Blakcman  v.  Miller 493 

Blanchard  v.  Blanchard 88 

Blanchard  v.  Brooks 87 

Blanchard  v.  Detroit,  L.  &  L.  M. 

R.   Co 3 

Bland  v.  Bland 60S,  669 

Blatchford  v.  Xewbcrry 299 

Bleccker  v.  Smith 24 

Blomfield  v.  Eyre 284 

Blore  V,   Sutton 369 

Blunt's  Trusts,  In  re 588 

Boatman  v.  Boatman 88 

Bochm  V.  Baldwin 96 

Bolding  v.  Strugnell 225 

Bolls  V.  Winton 35 

Bond  V.  Moore 61 

Bond  V.  Moore 55,  95,  196 

Bonnitcell  v.  Madison 24 

Booth,  In  re 241 

Booth  V.  Booth 209 

Boothhy  v.  Boothby 88 

Boraston's  Case 42,  45,  69 

Boscawen  v.  Bliss 14 

Boston  Safe  Deposit  &  Trust  Co. 

V.    Collier 657 

Boston  Safe  Deposit  d  Trust  Co. 

V.  Luke 690 

Bourke's  Trusts,  In  re 237 

Bowen,  In  re 586 

Bowen   v.   Lewis 124 

Botven  v.  Scoireroft 238 

Baices  v.  Goslctt 609 

Bowler  v.  Bowler 67 


Pago 

Bowles,  In  re 460 

Bown,  In  re 650 

Boyee  v.  Boyrc 706 

Boi/d  V.  Strahan 175 

Boyes  V.  Cook 399 

Boykin  v.  Anerum 95 

Braclenbury  v.   Gibbons.  ..  .57,  60,  99 

Bradford  v.  Griffin 35 

Bradford  v.  Monks 343 

Bradley  v.  Peixoto 002 

Bradly  v.  Westeott 6:35 

Bradshaw,  In  re 323 

Bradshaw  v.  Bradshaw 323 

Bradstreet  v.   Clark 24 

Brandon  v.  Robinson 662 

Brant    v.    Virginia    Coal    &    Iron 

Co 401 

Brassey  v.  Chalmers 335 

Bray  v.  Bree 564 

BrechbeUer  v.  Wilson     80 

Brcdenburg    v.    Bardin 335 

Brennan   v.   Brennan 706 

Brian  v.  Cawsens 608 

Brickenden  v.  Williams 356 

Bristow  V.  Boothby 563 

Broadway   Bank   v.   Adams 687 

Brokaw  v.  Ogle 88 

Bromley    v.    Smith 88 

Brook,  In  re 192 

Brook    V.    Pearson 647 

Brookman  v.   Smith 296 

Broomfield  v.   Crowder 69 

Brown   v.    Brown 32,192,193 

Broivn   v.    Chicago   d   N.    W.    R. 

Co 3 

Brown  v.  Eiggs 345,  350 

Broton  v.  Kelh  r 2 

Brown  v.  Lyon 136 

Broivn  v.   Macgill 694 

Brown  V.  Renshaw 305 

Brown   v.    Tilley 4 

Browne,  In  re 468 

Broione  v.   Browne 52,  78 

Bruce  V.  Charlton 204 

Brummell  v.  Macphcrson 14 

Brummet  v.  Barber 178 

Bryan  v.  Spires 35 

Buck  V.  Lantz 86 

Buckley  v.  Simonds 34 

Bucklin  v.    Crcighton 115,  143 

Buckton    V.    Hay 497 

Bull  V.  Kingston 609 

Bull  V.  Pritchard 52,  78,  234 

Bullard   V.   Goffe 116 

Bullock,   In  re 676 

Bulteel    V.    Plummcr 323 

Bunn,  In  re 225 

Burleigh  v.  Clough 45,  390,  635 

Burrough  v.  Foster 246 

Burrough   v.   Philcox 347 

Burton  v.  Gagnon 84,  190 


TABLE   OF   CASES 


ZIX 


Page 

Bushl)y  V.  Dixon 105 

Butcher  V.    Butcher ?>'.V2 

Butcher  V.  Leach 2'2C, 

Butter  field  v.  Reed G!)f» 

Cadell  V.  Palmer 430 

CalUson  v.  Morris 04 

Cambridge  v.  Rous 237 

Camp  V.  Cleary 598,  603 

Canedy  v.  Haskins 116 

CantiJlon's  Minors,  In  re 208 

Caraher  v.  Lloyd 87,  88 

Carpenter  v.  Hubbard 115 

Caripenter  v.   Sangamon  Loan   d 

Trust   Co 238 

Carroll  v.  Biim-s 136 

Carter  v.  Bloodgood's  Ex'rs 201 

Carter  v.   Carter 32 

Carter's       Heirs       v.       Carter's 

Adm'rs  716 

Carthew  v.  Euraght 346 

Cartlcdge,  In  re 204 

Canrardine   v.    Carwardine 45 

Cash  man's  Estate,  In  re 407 

CaskclTs  Trusts,  In  re 650 

Cassidy  v.  Mason 4 

Casterton  v.   Sutherland 346 

Cattlin  V.  Brown 550 

Chadock  v.  Cowley 245 

Chadu-ick  v.  Parker 11 

Chaffers  v.  Abell 204 

Chains  V.   Doe 57 

Challis  V.  Doe  d.  Evers 536 

Chamberlain  v.  Hutchinson 356 

Chamberlain  v.  Runkle 143 

Chamberlayne  v.   Brockett 591 

Chambers   v.    Tulane 335 

Chandos  v.  Talbot 205 

Chapin  v.  Crow 81 

Chapin  v.  Nott 84 

Chapman  v.  BUssett 261 

Chapman  v.  Cheney 95 

Chapman  v.   Pingree 3 

Cheney  v.  Teese 67 

Chettvood  v.  Winston 250 

Cliild  V.  Baylie 150,  408 

Child  V.  Baylie 151 

Cholmondley  v.  Meyrick 205 

Christ's  Hospital  v.  Grainger....  578 

Chudleigh's   Case 42 

Cincinnati  v.  Babb 705 

City  of  Peoriu  v.  Darst 41,  81 

Clache's   Case     257 

Clatlin  V.  Claflin 698 

Claflin  V.  Claflin 657,  702 

Clapp  V.  Foglcinan 248 

Clapp  V.  Ingraham 357 

Clark  V.   Henry 237 

Clark   V.   Middlesicorth 407 

Clark  V.  Neves 136,  143 

Clark  V.  Shaiven 32 


Page 
Clarke  v.  Fay 94 

Clarke's   Trusts,   In   re 651 

Clny,  In  re 338 

Clay  V.  Clay 193 

Clay  V.  Hart 335 

Clemens  v.  Heekseher 143 

Clere's  Case 30.  301,  379 

Clerk  V.  Day 116 

Clifford  V.  Clifford 369 

Clinfelter  v.  Ayres 335 

Clive   V.    Carew 651 

Clobberie's   Case 204 

Cloberry  v.  Lampen 204 

Close  V.  Railroad 4 

Coates  Street,  In  re 87,  88 

Cole  V.  Creyon 264 

Cole  V.  SGtcell 45,  198 

Cole  V.  Wade 343 

Coleman,  In  re 670 

Collins  V.  Brackett 4 

Columbia    Trust    Co.    v.    Christo- 
pher     314 

Comberbach  v.  Perry n 260 

Combs   V.  Combs 635 

Com.  V.  Crowley 193 

Com.  V.  Duffield 301,  364 

Compton  V.  McMahan 338 

Conduitt  V.  Soane 261 

Conklin  v.  Egerton's  Adm'r 338 

Cannelly  v.   O'Brien 94 

Conner  v.  Johnson 264 

Conrad  v.  Lang 704 

Constable  v.  Bull 237 

C'ooA;  V.  Cook 97,  101 

Cook  V.   Councilman 135 

Cook  V.  Hammond 86 

Cook's  Estate,  In  re 299 

Cookes'  Contract,  In  re 343 

Coombes,  In  re 650 

Cooper   V.    Cooper 198 

Cooper  v.  Martin 367,  378 

Cooper  V.  Stuart 484 

Coover's  Apipcal 299 

Corbet's    Case 600 

Corporation   of   Bristol   v.    West- 

cott  15 

Corr  V.  Corr 208 

Cory  V.  Cory 24 

Cote's   Appeal 86,  87 

Cotton  V.  Heath 153 

Courtenay,  In  re 265 

Cov  V.   Cunninf/hani 2 

Craft  V.  Indianapolis,  D.  d  W.  R. 

Co 41 

Crai-g  v.  Warner 55 

Graven  v.  Brady 299 

Crawford  v.  Wearn 143 

Creery  v.  Lingwood 237 

Crigan  v.  Baines 237 

Crocker  v.  Old  South  Society 24 

Croughton's  Trust,  In  re 650 


xz 


TABLE   OF  CASES 


Page 

Crozier  v.  Crozier 284,  299 

Cruder  v.  Phelps 704 

Cnimp  I',  yoruood 55.  136 

Cummiugs  v.  Hamilton 95,  96 

Cumston  v.  Burthtt 399 

CunUffe  V.  Brauckcr 52,  58 

Cunningham  v.  Moody 72.  75 

Carrey,  In  re 651 

Curtis  V.  Liikin 596 

Curtis  V.  Price 113 

Cuthbert  v.  Pitrrier 635 

Dale  V.  Bartley 299 

Daniel  v.  Thomson 250,  251 

Dart  V.  Dart 87 

Daubeney  v.  Cockbnrn 364 

Davenport  v.  Queen,  The 20 

Davids'  'Trusts,  In  re 385 

Davidson  v.  Dallas 267 

Davics,  Ex  parte 252 

Davies  v.  Euguenin 314 

Da  vies  V.  Aloreton 25 

Davies  v.  Thorns 384 

Davies'  Trusts.  In  re 356 

Davis  V.  Christian 335 

Davis  V.  Ripley 96 

Dawbin,  In  re 651 

Deadman  v.  Yantis 32 

Dean.  v.  Dean 60 

Dean  v.  Eandley 237 

Dee  V.  Dee 96 

Delaney  v.  McCormack 196 

Den  V.  Allaire 246 

Dendy  v.  Xicholl 16 

Denn  d.  Nowell  v.  Roake 387 

Demi  d.  Nowell  v.  Roake 390 

Dennett  v.  Dennett 55,  115 

De  Peyster  v.  Michael 598 

Deticold,  In  re 647 

Devisme  v.  Mello 259 

Dewar  v.  Brooke 232 

De  Wolf  V.  Middleton 196 

D  ick  V.  Harby 335,  336 

Diffenderfer  v.   Board   of   Public 

Schools    468 

Diltard  v.  Dillard 343 

Dixon,  In  re 616 

Dog  v.  Baker 11 

Doe  V.  Considine 67 

Doe  V.  Eyre 287 

Doe  V.  Frost 196 

Doe  V.  Gladwin 24 

Doe  V.  Laming 136 

Doe  V.   Peck 24 

Doe  V.  Pearson 599 

Doe  V.  Pritchard 14 

Doe  V.  Provoost 67 

Doe  d.  Anihler  v.  Woodbridge. . . .     23 

Doe  d.  Blomfield  v.  Eyre 284 

Doe  d.  Boscaicen  v.  Bliss 14 

Doe  d.  Comberhach  v.  Perryn. . . .  260 


Page 

Doe  d.  Freeman  v.  Bateman 2 

Doe  d.  Gallini  v.  Gallini 124 

Doe  d.  Gorges  v.  Webb 256 

Doe  d.  Herbert  v.  Selby 45,  534 

Doe  d.  Mussell  v.  Morgan 45 

Doe  d<  Norfolk  v.  Hawke 604 

Doe  d.  Noivell  v.  Roake 390 

Doe  d.  Pilkington  v.  Spratt 193 

Doe  d.  Planner  v.  Scudamore. . . .     76 
Doe  d.  Planner  v.  Scudamore . ...     45 

Doe  d.  Scott  V.  Roach 45 

Doe  d.  Stevenson  v.  Glover 609 

Doe  d.  Tanner  v.  Dorvell..  .72,  75,  256 

Doe  d.  Willis  v.  Martin 70 

Doe  ex  dem.  Wigan  v.  Jones 302 

Dommett  v.  Bedford 641 

Donnelly  v.  Eastes 24 

Dorr  V.  Lovering 556 

Dott  V.  Cunnington 143 

Doty  V.  B  urdick 2 

Douglas  v.  Congreve 115 

Dove  V.  Torr 192,  193 

Doyley  v.  Attorney  General 345 

Drake  v.  Attorney  General 363 

Druecker  v.  McLaughlin 3 

Drummond's  Ex'r  v.  Drummond. .  291 

Drury  v.  Drury 96,  264 

Ducker  v.  Burnham 67,  88,  94 

Dugdale,  In  re 603 

Duke  V.  Dvches 175 

Duke  of  Norfolk's  Case 153,  408 

DuU's  Estate,  In  re 143 

Dutupor's  Case 12 

Dumpor's  Case 14 

Duncan  v.  Bluett 115 

Duppa  V.  Mayo 11 

Dusenben-y  v.  Johnson 284 

D'Wolf  V.  Gardiner 87 

Dales  V.  Drake 356 

Early  v.  Earhj 86 

Earnhart  v.  Earnhart 135 

Eaton  V.  Boston  Trust  Co 690 

Eaton  V.  Brown 189 

Eaton  V.  Smith 343 

Eaton  V.  Straw 297,  634 

EavestafC   v.   Austin 298 

Eccles  V.  Birkett 230 

Eckhart  v.  Irons 3 

Eddowes  v.  Eddowes 101 

Edie  v.  Babington 359 

Edward  Clere's  Case 36,  301,  379 

Edwards  v.  Burt 88 

Edwards  v.  Edwards 237,  238 

Edwards  v.  Hammond 69 

Edwards  v.  Varick 87 

Egerton  v.  Massey 53 

Egerton  v.  Massey 55 

Eichelbergcr  v.   Barnitz 250 

Elliott  V.  Elliott 209 

Elliott  V.  Smith 237 


TABLE   OF  CASES 


XXI 


Page 

Ellis's  Trusts,  In  re 651 

Elyton  Land  Co.  v.  South  &  N.  A. 

R.   Co 3 

Emmet's  Estate,  In  re 265 

Emperor  v.  Rolfe 205 

EfjuitabU  TruMt  Co.  v.  Fisher 41 

Evans  v.  Evans 135 

Evans  v.  Scott 205 

Evans  v.  Walker 172,  449 

Evans  v.  Weatherhead 143 

Eve,  In  re 204 

Eyres  v.  Faulkland 170 

Faber  v.  Police 45 

Faith  V.  Boules 4 

Faloon  v.  Simshauser 97 

Fargo  v.  Miller 196 

Farnam  v.  Faniam SO 

Farrar  v.  McCue 336 

Fancell  v.  Easton 24 

Faulkner  v.  Lowe 343 

Faulkner  v.  Wynford 347 

Fernclei/s  trusts.  In  re 502 

resting  V.  Allen 50,  78 

Fcsting  v.  Allen 57 

Field  V.  Providence 4 

Fifer  v.  Allen 238 

Finch  V.  Lane 

Fitehie  v.  Brown 

Fitzgerald  v.  Sta7idish 

Flanders  v.  Clark 

Fleming  v.  Buchanan 359, 

Flinn  v.  Davis 250, 

Flower,  In  re 

Forbes  v.  Peacock 

Forsythe  r.  Lansing's  Ex'rs 

Fortescue  v.  Satterthwaite 

Forth  V.  Chapman 

Fortier  v.  Ballance 

Fosdick  V.  Fosdick 

Foster  v.  Roberts 

Fothergill  v.  Fothcrgill 

Foulkes   V.    Williams 

Foiclcr  v.  Black 

Fox  V.  Fox 

Fox  V.   Fox 

Fox's  Estate 

Frazer  v.  Board  of  Sup'rs 

Freeland  v.   Pearson 

Freeman   v.   Bateman 

Frith,  In  re 

Frogmorton  v.  Holyday 

Frogmorton  v.  Wharrey 45, 

Frost,  In  re 

Fuller  v.  Chamier 

Fu7ik  V.  Eggleston 

Furness  v.  Fox 

Furnish  v.  Rogers 

Fusselman  v.  Worthington 


Page 

Galland  v.  Leonard 237 

Oallinger  v.  Farlinger 599 

Gallini  v.  Gallini 124 

Game,  In  re 502 

Garde  Broicne,  In  re 468 

Garfoot  v.  Garfoot 337 

Garland  v.  Smyth 198 


Garrison  v.  Hill 

Gaicler  v.  Standerwick. 
Genet  v.  Ilunt. 


422 
335 

608 
364 
626 
577 
335 
94 
87 
248 

444 
S8 
369 
399 
143 
227 
232 
201 
55 
349 
.  2 
196 
292 


117 
490 
116 
399 
204 
.  88 
2 


Gaines  v.  Fender 343 

Gainsford  v.  Dunn 332 


86 
205 
574 

Gibson  v.   Doeg 24 

Giles   V.   Austin 25 

Giles    V.    Little 407 

Gill  V.  Worrall 257 

Gilman  v.  Bell 359 

Gilmore   v.    Severn 264 

Gimblett  v.  Purton 265 

Girard  Triist  Co.  v.  Russell 595 

Glover  v.  Condell 40 

Glover  v.   Stillson 407 

Gluck  V.  Elkan 24 

Godfrey  v.   Davis 261 

Godfrey  v.  Ilarben 360 

Colder  v.  Bressler 343 

Golladay  v.  Knock 81 

Gooch  V.   Gooch 101 

Goodder  v.  Edmunds 577 

Goodill  V.  Brigham 37 

Goodrich  v.  Goodrich 96 

Goodright   v.   Davids 16 

Goodiitle   v.   BiUingion 45 

Goodtitle  v.   White 55 

Goodtitle  d.  Gurnall  v.  Wood 417 

Goodwin  v.  Clark 562 

Gore  V.  Gore 1^^ 

Gorges   v.    Webb 256 

Gorman  v.  Byrne 301 

Gotch  V.  Foster 234 

Goulder,  In  re 606 

Gowland  v.  De  Faria 88 

Gozzard   v.    Jobbins 606 

Graeft  v.  De   Turk 332 

Grant  v.    Lyman 386 

Gray  v.  Blanchard 3 

Gray  v.  Chicago,  If.  d  St.  P.  R. 

Co 4,  10 

Gray  v.  Lynch 343 

Great ed  v.  Created 297 

Greaves  v.  Simpson 116 

Green  v.  Bridges 25 

Green  v.  Harvey 616,  635 

Green  v.  Hewitt 32 

Green  v.  Spicer 663 

Green's  Case 16 

Greene  v.  O'Connor 4 

Greenough  v.   Welles 338 

Greenwood  v.  Yerdon 246 

Gretton  v.  Howard 136 

Grey's  Settlements,  In  re 650 

Grimshaw's  Trusts,  In  re 232 

Grimwood  V.  Moss 16 


XXll 


TABLE    OF    CASES 


Page 

Gross  V.  Bheeler 143 

Grosvenor  v.  Boxccn 307,  314 

Guernsey  v.   La^( ar G90 

Gulliver  V.  Taux 616 

Gulliver   v.    Wickett 292 

Gnmall  v.  ^Vood 417 

Gutman  v.  Buckler 343 

Gwilliam,  v.  Rowel 337 

Uudcox  V.  Cody 264 

Hadley,    In    re 303 

Badlcjj  V.  Ifadleii 343 

Haffar,  Adni'r,  v.  Buek 25 

H agger  v.  Payne 25!) 

Haisht,    In    re 719 

Hall  V.  Bliss 400 

Ball  V.   La  France  Fire  Engine 

Co 45,  94 

Hall   V.   Nute 67 

Hall  V.  Priest 246 

Hall  V.  Robinson 635 

Hall  V.  Terry 204 

Hall  V.  Thayer 136 

Hamel  v.  Minneapolis  St.  P.  &  S. 

.v.  M.  Ry 4 

Hamilton  v.  Wentworth 116 

Hamlet,   In  re 244 

Hammond  v.  Port  Royal  &  A.  R. 

Co 3 

Hamilton  v.  Rather 143 

Hancock,  In  re 548 

Hanna  v.  Haices 45,  115 

Hannaford  v.  H annaford 256 

Hanson  v.  Graham 219 

Hardin  v.  Forsythe 2 

Harding  v.   Glyn 344 

Hargreaves,    In   re 453 

Harman  v.  Dickenson 197 

Harrin-gton  v.  Harte 364 

Harriets  Trust,  In  re 356 

Han-is  v.  Davis 297 

Harris  v.  Shaw 3 

Harris   v.   Smith 250 

Harrison  v.  Foreman 279 

Harrison  v.  Harrison 198,  427 

Hart's  Trusts,  In  re 218 

Hartshorne  v.  Watson 11.  16 

Harvard  College  v.  Batch 75,  390 

Hm-vey  v.   Ballard 113 

Harwood  v.  Shoe 704 

Hassam  v.  Hazen 399 

Howard   v.    Peavey 80,  94 

Hawden  v.  Hawdcn 115 

Hawke  v.  Euyart 723 

Hawkins  v.  Kemp 334 

Hawley  v.  Eafitz 4 

Hatcthorn  v.   Ulrich 332 

Hayes  v.   Oatley 363 

Hays  V.  St.  Paul  Church 3 

Hayicard,   In   re 237 

Hay  ward  v.  Spaulding 45,  65 


Page 

Heard  v.  Read 193,  196 

Henderson  v.  Cross 609 

Henderson   x\    Hill 88 

Herbert  v.  Selby 45,  534 

Herbert  v.  Webster 502 

Hcrrell  v.  Sizeland 2 

Ilervcy  v.  McLaughlin 238 

Hess  V.  Lakin 116 

Hicks   V.   Pegues 86 

Hide  V.  Parrat 171 

Higinbotham  v.   Holme 647 

Hill  V.  Barclay 25 

Hill  V.  Chapman 258 

Hill  V.  Chapman 97 

Hill  V.  Hill 88,  94,  183 

Hill  V.  Schwarz 328 

Hillhouse  v.    Chester 86 

Hincksman  v.   Smith 88 

Hind  V.  Poole 343 

Hindson  v.    Wood 196 

Hinrichsen  v.  Jlinrichsen 94 

Hoare  v.   Parker 172 

Hoath  V.  Hoath 218 

Hoi  ford.  In  re 276 

Holland,  In  re 647 

Holland  v.  Alsop 198 

Holland  v.  Wood 264 

Hollander  v.  Central  Metal  Co 492 

Hollis'  Hospital,  In  re 475 

Hollister  v.  Shaio 390 

Holloway  v.  Holloway 190 

Holmes,  In  re 650 

Holmes  v.  Coghill 359,  364 

Holmes  v.  Godson 612 

Holmes  v.  Gordon 617 

Holmes  v.  Penny 692 

Holmes  V.  Prescott 52,  57,  78 

Hooper  v.  Cummings 3,  24 

Hopkins  v.  Grimshaw 588 

Hopkins  v.  Phelps 533 

Home  V.  Lyeth 143 

Horner  v.  Chicago,  M.  &  St.  P.  R. 

Co 4 

Horner  v.  Swan 312 

Horton  v.  New  York  Cent.  &  H.  R. 

Co 25 

Hoskins'  Trusts,  In  re 363 

Houell  V.  Barnes 335 

Houghton,  In  re 238 

Houghton  v.  Brawn 238 

House  V.  Jackson 94 

Houston  &  T.  C.  R.  Co.  v.  Ennis- 

Calvert    Co 4 

Howe  V.  Hodge 95 

Howe  V.  Morse 506 

Iloyt  v.  Ret  Cham 4 

Hubbard  v.  Raw  son 633 

Hubbird  v.  Goin 260 

Hudson,  In  re 257 

Hudson  V.  Hudson 257 

Hudsons,  In  re 205 


TABLE   OF   CASES 


zxni 


Page 

Hughes  V.  Ellis 296 

Hughes  V.  Ellis 297 

Hnjrhes  v.  Saver 24S 

Hughes  V.  Turner 385 

Hulburt  V.  Emerson 250 

Hull  V.  Palmer 690 

Humane  Soeiettf  r.  MrMurtrie . .  .   288 

Humphrey  v.  Campbell 359 

Hunter  V.   Galliers 636 

Hum/  V.   Morgan 198 

Hurst  V.  Hurst 291,  647 

Hurto  V.  Grant 24 

Hutchings,  In  re 650 

Hutchinson  v.  Maxwell 694 

Ide  V.  Ide 252.  626.  634 

Incorporated   Village   of  Ashland 

r.  Grciner 4 

Inderuwk  v.  Tatchell 203 

Ingham  v.  Ingham 237 

Innes  v.  Sayer 371 

Innes  v.  Sayer 375 

Iredell  v.  Iredell 265 

Irish  V.  Antioch  College 41 

Irvine  v.  Neiclin 45,  52 

Jackson  v.  Allen 24 

Jackson  v.  Bull 626 

Jackson  v.  Hohhouse 651 

Jackson  v.  Jaekson 369 

Jackson  v.  Noble 282 

Jackson  v.  Xohle 286,  288 

Jackson  v.  RoMns 622 

Jackson  v.  Fon  Zedlitz 694 

Jackson  v.  Wahlron 87 

Jarvis  v.  Wyatt 45 

Jeanneret  v.  Polack 651 

Jee  V.  Audley 413 

Jeffers   i'.   Lampson 87.  94 

Jeffreys  v.  Conner 241 

Jenkins  v.  Bonsai 86,  87 

Jenkins'  Trusts,  In  re 297,  621 

Jenncy  v.  A  ndreics 363 

Jesson  V.  Wright 118 

Jesson  V.  Wright 124 

Johnson  v.  Askey 196 

Johnson  v.  Battelle 75 

Johnson  v.  Jacob 45 

Johnson  y.  Touchet 375 

Jones,  In  re 621 

Jones  V.  Carter Kj 

Jones  V.  Clifton 359 

Jones  V.  Morgan 113 

Jones  V.  Picketts 88 

Jones  V.  Rces 143 

Jones  V.  Tucker 382 

Jones  V.  Westcomb 292 

Jones  V.  Westcomb 292 

Jones  V,  Winwood 303 

Jordan  v.  Adams 124 

Joslin  V.  Hammond 237 

Jourolmon  v.  Massengill 690 


Page 
Jiill  V.  Jacobs 78,  299 

Kean's  Lessee  v.  Hoffecker 86 

Keep's   Will.   In  re 198 

Kellett  V.  Shcpard 55,  192 

Kellcy  V.  Mvins 626,  635 

Kemp  V.  Kemp 332 

Kendall  v.  Gleason 193 

Kcnnard  v.  Kennard 67 

Kennedy  v.  Kingston 347 

Kepler  v.  Larson 130 

Kepler  v.  Reeves 116 

Kessner  v.  Phillips 656 

Kevern  v.  Williams 269 

Kew  V.  Trainor 14 

Keyser's   Appeal 656 

Kilpatrick  v.  Mayor 4 

Kinch  V.  Ward 136 

King  v.  BurchcU 600 

King  v.  Norfolk  d  W.  R.  Co 4 

King  v.  Shelton 702 

Kin{jman  v.  Harmon 88 

Kirkpatrick  v.  Kirkpatrick 75 

Klingman  v.  Gilbert 444 

Knight  v.  Broicne 647 

Knight  v.  Pottgieser 32,  67 

Knr}.r  V.  Barker 143 

Kountz's  Estate,  In  re 204,  232 

Kron  V.   Kron 40,  41 

Kuhn  V.  Webster 634 

Lake  V.  Brown 41 

Lakey  v.  Scott 86 

Lambert  v.  Thicaites 347 

LampeVs  Case 87,  88,  149 

Lane  v.  Del)enham 338 

Lane  v.  Goudge 222 

Lanesborough  v.  Fox 564 

Lantsbery  r.  Collier 577 

Large' s  Case 606 

Lassells  v.  Lord  Cornwallis 362 

Latimer  v.  Latimer 34 

Latimer  v.  Waddell 603 

Laicrcnce  v.  Laurence 506 

Lawrence  v.  Pitt 86 

Laurence's  Estate,  In  re 574 

Lawton  v.  Corlies 193 

Leake  v.  Robinson 232,  234,  519 

Lechmere  &  Lloyd,  In  re 58 

Lechmere  &  Lloyd,  In  re 58,  60 

Lee  V.  Lee 192 

Lee  V.  Simpson 399 

Leggett  v.  Dorcmus 303 

Lemaeks  v.  Glover 45 

Le  Maitre  v.  Bannister 608 

Leng  v.  Hodges 415 

Leonard  v.  Haicorth 506 

Leonard  v.  Sussex 113 

Lester  r.  Garland 647 

Letchworth  r.  Vaughan 4 

Letcin  v.  Killey 237 

Lewis  V.  Claiborne 246 


xxiv 


TABLE    OF    CASES 


Page 

Lewis  V.  Lewellyn 391 

Lewis  V.  Palmer 407 

Liddi/  V.  Kennedy H 

Ughihurne  r.  GUI 609 

Li'lley  v.  Fifty  Assoeiatcs 25 

Littlefield  v.  Mott 40 

Little  Rod:  Granite  Co.  v.  Shall.  .     25 

Lloyd  V.  Carew 408 

Lloyd  V.  Tweedy 621 

Locke  V.  Lam  b 232 

Lockyer  v.  Savage 636 

Locton   V.   Locton 337,  338 

Loddington  v.  Kinie 49 

Lofton  V.  Murchison 96 

Tvoudon  &  S.  W.  R.  Co.  v.  Gomm.  .  461 

Long  V.  Blackall 416 

Long  V.  Moore 4 

Ix)nghead  d.  Hopkins  v.  Phelps.  .  533 

Lord  V.  Bunn 666 

Lord  V.  Comstocli 143 

Lord    Bindon    v.    Earl    of    Suf- 
folk    237,  238 

Lord  Stratheden,  In  re 594 

Lord  Townshend  v.  Windham .... 

362,  364 

Los       Angeles       University       v. 

Swarth    3 

Lovat  V.  Lord  Ranelagh 25 

Low  V.  Burron 412 

Loice  V.  Land 198 

Lonman,   In   re 297 

Luddy,  In  re 237 

Lunt   V.   Lunt • 702 

Luxf ord  V.  Cbeeke 67 

I/yle  V.  Richards 45 

I/yons  V.  Bradley 55G 

McBee,  Ex  parte 13G 

McCall  V.   Lee 178 

McCampbell  v.  Mason. .  .41,  45,  81,  95 

McCartney  v.  Hunt 2 

McConnell  v.  Stewart 67 

McCreary  v.  Coggcshall 55 

McVue  V.  Barrett 24 

McEhcee  v.    Wheeler 45 

McFull   V.    Kirkpatrick 305 

McGaughey's  Adni'r  v.  Henry....  356 

McGinnis  v.  Fernandes 2 

McGlynn  v.   Moore 24 

Machen  v.  Machen 143 

MacKenzie  v.  Trustees  of  Presby- 
tery of  Jersey  City 581 

Mackinnon  v.   Sewell 292 

Macleay,  In  re 599 

MoQuesten  v.  Morgan 12 

Mactier   v.    Osborn 25 

Maden  v.  Taylor 257 

Madiison  v.  Larmon.  ..  .67,  88,  95,  444 

Maher  v.   Maher 204 

Mainwaring    v.    Beovor 271 

Manchester    v.    Durfee 136 


Page 

Mandelbaum  v.   McDoncll 606,  656 

Mandeville's  Case 41 

Ma  mi  V.  I'honifpson 270 

Manning's    Case 145 

Marten,  In  re 356 

Martin,  In  re 227 

Martin  v.  Margliam 595 

Marvin  v.  Led  with 32 

Maryland  Mut.  Ben.  Soc.  v.  Cleiv- 

dinen   390 

Mary  Portington's  Case 11,     600 

Mason,    v.    Bloomington    Lihrary 

Ass'n    506 

Mason  v.  Pate's  Ex'r 143 

Mason  v.  Wheeler 390 

Mattheivs   v.    Temple 99 

Maundrell  v.  Maundrell 37 

May  V.  Boston 3 

May  V.  Joynes 621 

Mead  v.  Ballard 3 

Meadows   v.   Parry 292 

Measure  v.  Gee 115,  136 

Mebane  v.  Mebane 656 

Meeker  v.  Breintnall 390 

Methodist  Church  v.  Young 10 

Mellicbamp    v.    MellicLiamp 99 

Melson  v.  Cooper 626 

MerkeVs  Appeal 175 

Merrifield  v.  Coblei^h 24 

Merrill   v.    Ti^mmer 25 

Mcrvin,  In  re 232 

Metzen  v.  Schopp 250 

Middleton  v.  Messenger 261 

Mifflin's  Appeal 566 

Mildmay's  Case 35,  599,  600,  601 

Miles  V.  Harford 535 

Miles  V.  Jarvis 58 

Milhollen's  Adm'r  v.  Rice 356 

Miller  v.  Emans 87 

Miller   V.    McAllister 102 

Miller   v.    Riddle 29 

IVIills,  In  re 391 

Mills  V.  Mills 399 

Mills  V.  Seattle,  etc.,  R.  Co 3 

Mills  V.  Seward 136 

Miner d  v.  Delaware  Co 3 

Minard  v.  Delaivare  Ry 4 

Minnig  v.  Batdorff 67 

Minot  V.  Tappan 193 

Mittel  V.   Karl'. 88 

Mogg  V.  Mogg 101 

Monteflore  v.  Browne 334 

Many  penny  v.  Bering 297 

]Moore,  In  re 706 

Mowe,  In  re 363,  422,  429 

Moore  v.  Ffolliot 349 

Moore  v.  Littel 94 

Moore  v.   Parker 113 

Moore  v.  Rake 86 

Moore  v.   Reddel 143 

Moore  v.  Sanders 617 


TABLE    OF    CASES 


XXV 


Page 

Moore  V.  Ullcoats  Min.  Co 11 

Moores  v.  Hare 94 

Hoot  Case 55 

Moran's  Will,  In  re 94 

Morchouae  v.  Cotheal 250 

Moreton  v.   Lees 301 

Morgan  v.  Gronow 5«ifi 

Moryan  v.  Milnmn 371 

Morgan  v.  Morgan 20.*!; 

Morris,  In  re 220 

Morrison  v.  Kelly 41 

Morse  v.  Martin 3G8 

Mortimer,  In  re 300 

Mortloclc's  Trust,  In  re 617 

Morton  v.  Bahh 41 

Mosley's  Trusts,  In  re. 532 

Moss  V.  Chappell 4 

Mott   V.    Ackerman 338 

Mott  V.  Danville  Seminary 29 

Moyston  v.  Bacon 407 

Mudge  v.  Hamtnill 45 

Muldrow's  Heirs  v.  Fox's  Heirs..  335 

Munson  v.   Berdan 384 

Murkvn  v.  Phillipson 205 

Murray  v.  Jones 292 

Mussell  V.  Morgan 45 

Mussett  V.  Bingle 506 

Nannock  v.  Horton 390 

'Napier  v.  Napier 391 

Neary's    Estate,    In   re 237 

Nesbitt  V.  Berridge 88 

Newhall  v.  Wheeler 634 

Nichol  V.  Levy 686 

Nicliols  V.  Eaton 678 

Nichols  V.  Guthrie 88 

Nichols  V.  Hooper 246 

INioholson  v.  Settle 245 

NicoTl  V.  Scott 32 

Nicolls  V.  Sheffield 562 

Nightingale  v.  Phillips 115 

Nodine  v.  Greenfield SO 

Norfolk   (Duke)   Case 408 

Norfolk  V.  Hawke 604 

Norfolk's  Case  (Duke  of) 153 

Norman  v.  Kynaston 284 

North  V.  Graham 29,  87 

Northern  Trust  Co.  v.  Wheaton. .  94 

Nowell  V.  Roake 387 

Noicell  V.  Roake 390 

O'Brien  v.  Barkley 704 

O'Brien  v.  Battle 343 

O'Callaghan  v.  Sivan 616 

Odell  V.  Odell 596 

O'Hare  v.  JohnMon 264 

Oliver  v.  Powell 86 

O'Mahoney  v.  Burdett 235.  291 

O'Melia  v.  Mullarky 32,  67.  88 

Oppenheim  v.  Ilenrj^ 268.  695 

O'Grady  v.  Wilmot 362 


Page 

Orr  V.  Yates 84 

Ortmayer  v.  Elcock 88 

Osgood  V.  Bliss 399 

Osgood  V.  Franklin 335 

Overton  v.  Lea 599 

Oicen  V.  Gibbons 43 

Pacific  Bank  v.  Windram 690 

Packham  v.  Gregory 222 

Palmer  v.  Locke 316 

Palmer's  Trusts,  In  re 198 

Papillon  V.   Voice 113,  115 

Papst  V.  Hamilton 3 

Parish's  Heirs  v.  Ferris 250 

Parker,  In  re 230 

Parker  v.  Bolton 115 

Parker  v.    Cobe 702 

Parker  v.  Ross 67,  80 

Parker  v.  Scars 843 

Parkin,  In  re 328 

Parsons  v.  Miller 3 

Paschall   v.   Passmore 3 

Patterson  v.  Lawrence 359,  364 

Payne  v.  Rosser 86 

Pearce  v.  Forwell 265 

Pearee  v.  Loman 207 

Peard  v.  Morton 237 

Pearson,  In  re 64Y 

Pearson  v.  Dolman 232 

Pedder  v.  Hunt 116 

Peer  v.  Hcnnion 135 

Pells  V.  Brown 38,  245 

Pellet reau  v.  Jackson 87 

Pcmbction  v.  Barnes 10 

Pennant's    Case 15 

Pennoek  v.  Lyons 14 

Pennsylvania  Co.  v.  Baucrle 343 

Pennsylvania  Co.  v.  Price 506 

People  V.  Byrd 96 

People  V.  Peoria 238 

Peoria  v.  Darst 41.  81 

J'epper's   Will 375 

Perceval  v.  Perceval 55,  57 

Perrin  v.  Blake 117 

Perry  v.  Mcrritt 609 

Peter  v.  Beverly 335 

Phayer  v.  Kennedy 88 

Phene's  Trusts,  In  re 345 

Philbrick's  Settlement,  In  re....  363 

Phipps  V.  Ennismoi-e 647 

Pickard  v.  Booth 241 

Pick  en    v.    Matthews 530 

Pickicorth,  In  re 284 

Pierce  v.  Brooks 102 

Piercy  v.  Roberts 648 

Pilkington  v.  Spratt 193 

Pingrey  v.  Rulon 94 

Pinkham  v.  Blair 196 

Pirbright  v.  Salwey 506 

I'itt    V.    Pelham 337 

J'itzel  V.  Schneider 78,  532 

Planner  v.  Scudamore 76 


XXVI 


TABLE    OF    CASES 


Page 

Planner  v.  Scudamore 45 

Piatt  V.  Routh 363,  364 

Plunket  V.  Ilolmes 55 

Polk  V.  Faris 143 

Pollock  V.  Booth 468 

Porter,  In  re 606 

Porter  v.  Fox 530 

Portington's  Case H,  600 

Portland  v.  Teruilliger 3 

Post  V.  Weil 3 

Potter  V.  Couch 603,  606 

Powell,   In  re 276 

Powell  V.  Boggis 606 

Powell  V.  Brandon 143 

Powell  V.  Howells 256 

Powell's  Trusts.  In  re 572 

Pounall  V.  Graham 422,  429 

Preshyterian  Church  v.  Venahle..     29 

Pressgrove  v.  Comfort 143 

Price  V.  Hall 78 

Price  V.  Ball 57 

Priee  V.  Worwood 16 

Priestley  v.  Holgate 703 

Proctor   V.    Bishop    of   Bath    and 

Wells  534 

Proctor  V.  Toics 2 

Provost  of  Beverley's  Case 110 

Prowse  V.  Abingdon 207 

Pulitzer  v.  Livingston 507 

Pushman  v.  FilUter 009 

Putnam  v.  Fisher 343 

Putnam  v.  Story 338 

Rabheth  v.  Squire 257 

Rabbins,  In  re 257 

Radcliffe,  In  re 305 

Railroad  v.  Hood 4 

Railsback  v.  Love  joy 75,  88 

Ramsdell  v.  Ramsdell 407 

Rand  v.  Butler 196 

Randolph  v.  Wright 634 

Ransdell  v.  Boston 718 

Rawley  v.  Holland 107 

Raulinson  v.  Wass 196 

Rawson  v.  Raivson 193 

Rawson  v.  School  District 4 

Rede  V.  Farr 11 

Redfern  v.  Middleton's  Ex'rs ....     45 

Reeve  v.   Long 47 

Reichenbach  v.   Washington,  etc., 

R.  Co 3 

Reid  V.  Gordon 305 

Reid  V.  J.  F.  Wiessner  Breicing 

Co 14 

Reid  V.  Reid 237,  343 

Reid  V.  Shergold 307 

Reid  V.  Voorhees 204 

Reith  V.  Seymour 635 

Requa  v.  Graham 692 

Reynolds  v.  Pitt 25 

Rhodes  v.  Whitehead 52,  57,  78 

Rice  V.  Boston  &  W.  R.  Corp 7 


Page 

Richards  v.  Bergaveumy 116 

Ricketts  v.  Loft  us 332 

Rickner  v.  Kessler 32 

Rid  dick  v.  Cohoon 626 

Ridge's  Trusts,  In  re 257 

Ridley,    In    re 497 

Ring  V.  Hard  wick 557 

Kingrose  v.  Bramham 269 

Roach  V.  Wadham 301 

Roake  v.  Denii 390 

Robertson  v.  Gaines 335 

Robertson  v.   Garrett 264 

Robertson  v.  Guenther 88 

Robeson  v.  Cochran 81 

Robinson  v.  Allison 335,  336 

Robinson  v.  Le  Grande  d  Co 135 

Robinson   v.    Wood 289 

Rochf ord  v.  Hackman 642 

Rochfort  V.  Fitz  Maurize 115 

Roddy  V.  Fitzgerald 124 

Rodin  V.  Smith 204 

Roe  V.  Tranmer 34 

Roe  d.  Hunter  v.  Galliers 636 

Roe  ex  dem.  Sheers  v.  .Jeff ery ....  253 

Rogers  v.  Eagle  Fire  Ins.  Co 34 

Rogers  v.  Mnitch 270 

Rogers   v.    Randall 183 

Rogers  v.  Rogers 238,  356 

Rogers'  Estate,  In  re 94 

Rolfe    V.    Harris 25 

Roome  V.  Phillvps 69 

Rosher,  In  re 599 

Ross  V.  Ross 607 

Ross  V.  Ross 609,  635 

Roundtree  v.  Roundtree 88 

Rous  V.  Jackson 574 

Row's  Estate,  In  re 198 

Royal  V.  Anltman  d  Taylor  Co.. .     24 

Ruddell  V.  Wren 84,  96 

Russell,  In  re 143,  238 

Russell  V.  Russell 232 

Ryan  v.  Mahan • 359 

St.  John  V.  Chew 246 

St.    Paul's    Church    v.    Attorney 

General  596 

Salisbury  v.  Petty 238 

Salter  v.  Bradshaw 88 

Sanders  v.  Pope 25 

Sanford  v.   Lackland 695 

Sard,  In  re 651 

Satter field  v.  Mayes 264 

Saunders  v.  Edivards 115 

Saunders  v.  Vautier 214,  695 

Sayer  v.  Sayer 371 

School  V.  Whitney 581 

Scotney  v.  Lomer 225 

Scott  V.  Bargeman 256 

Scott  V.  Harioood 97 

Scott  V.  Roach 45 

Scovill  V.  McMahon 24 


TABLE   OF   CASES 


XXVll 


Page 

Sears  v.  Russell 193 

Seaver  v.   Fitzgerald 173 

Security  Co.  v.  Pratt 407 

Serjreson  v.   Sealey 308 

Sewall  V.  Wilmer 399 

Seymour  v.  Boxoles 90 

ShackcUon  v.   Sebree 34 

Shannon  v.  Bradstreet 309 

Sharvnyton  v.  Strutten 34 

Sharman  v.  Jackson 45 

Shaw   V.    Ford 018 

Shaw  V.  Robinson 110 

Shee  V.  Hale 040 

Sheers  v.  Jeffery 253 

Shelley's   Case 115,  110.  123,  124, 

135,  130,  143 

Shelton  v.  Homer 335 

Shepherd  v.  Ingram 97 

Shepherd  v.  Ingram 257 

Shrimpton  v.  Shrimpton 204 

Siceloff  V.  Redman's  Adm'r 143 

Siddons  v.  Cockrell 94 

Siegwald  v.  Siegicald 40 

Siemers  v.  Monns 090 

Simonds  v.  Simonds 05 

Singleton,   Ex  parte 173 

Singleton  v.   Gilbert 97 

Sinnett  v.  Herbert 589 

Sir  Edward  Clere's  Case.  .30,  301,  379 

Slade  V.  Patten 502 

Sloeum,  V.   Hagaman 299 

Smaw  V.  Young 94 

Smell  V.  Dee 204 

Smith,  In  re 343 

Smith   V.   Ashton 305 

Smith  V.  Butcher 143 

Smith  V.  Camelford 72,  75 

Smith  V.  Colnian 237 

Smith  V.  Curtis 393 

Smith  V.  Death 311 

Smith  V.  Floyd 350 

Smith  V.  Kimbell 41,  241,  250 

Smith  V.   McCormiclc 143 

Smith  V.  Pendell 87 

Smith  V.  Plummer 311 

Smith   V.    Snow 034 

Smith  V.   West 94 

Smith  V.  Winsor 193 

Smither  v.  Willock 284 

Sneed  v.  Sneed 307 

Snowdon   v.    Dales 004 

Sohiei-  V.  Trinity  Church 3 

Southampton  v.  Hertford 590 

Southard  v.  Central  R.  Co 10 

Southern  v.  Wollaston 445 

Southwell  &  Wade's  Case 26 

Spencer  v.  Spencer 332 

Spencer,  In  re 050,  051 

Spencer  v.  Wilson 227 

Spengler  v.  Kulin 88 

Springer  v.  Savage 32 


Page 

Standen  v.  Standen 379 

Stanley  v.  Colt 3 

Stansbury  v.  Hubncr 001 

St  archer  Bros.  v.  Duty 475 

Starr  v.  Willoughby 80 

State  V.  Savin 175 

Stead  V.  Piatt 2.34 

Stephen  v.   Cunningham 244 

Stevenson  v.  Glover 009 

Steivart  v.  Stewart 40,  41 

Stiles  V.  Ctnnmings 200 

StiUrell  v.  S.  L.  d  II.  R.  Co 3 

Stockton  V.   Weber 70() 

Stokes  V.  Van  Wyck 190 

Stoller  V.  Doyle 40 

Stone  V.  Forbes 399 

Stoner    v.    Curwen 115 

Stores  V.  P>enbow 549 

Storrs  Agricultural  School  v.  Whit- 
ney    581 

Storrs  V.  Benbow 270 

Strain  v.  Sweeny 41 

Strange  v.  Barnard 009 

Stratheden   (Tx)rd),  In  re 594 

Stretton  v.  Fitzgerald 297 

Striker  v.  Mott 88 

Stringer's  Estate,  In  re 297 

Stuart  V.  Babington 577 

Stump  V.  Findlay 45 

Hturgess  v.  Pearson 284 

Sty  an,  In  re 57 

Style's  Case 117 

Summers  v.  Snt\ith 40,  240 

Sunday  Luke  Min.  Co.  v.   Wake- 
field        25 

Supervisors  Warren  Co.  v.  Patter- 
son          3 

Surman  v.  Surman 035 

tiutton's  Hospital   Case 34 

Swain,  In  re 500 

Sykes's  Trusts,  In  re 050 

Synge  v.  Synge 647 

Taber,  In  re 651 

Taft  V.  Taft 75 

Taint er  v.  Clark 338 

J'dUman  v.  Wood 115 

Tanner  v.  Dorvell 72,  75,  256 

Tarbuck  v.  Tarbuck 2V)4 

Tarver  v.  Haines 335 

Taylor  v.  Cedar  Rapids  d  St.  P. 

R.   Co 3 

Taylor  v.  Cleary 135 

Taylor  v.  Lam  bert 208 

Taylor  v.  Stainton 237 

Taylor  v.  Taylor 88 

Teaguc's  Settlement,  In  re 500 

Teal  V.  Richardson 143 

Tcape's  Trust,  In  re 391 

Teed  v.  Morton 204 

Temple  v.  Scott 88,  95 


xxviii 


TABLE    OF    CASES 


Page 

Tenant  v.  Broiv-ne 338 

Thorp's  Estate.  In  re 198 

Thellusson  v.  Woodford 418 

Tlioinas   v.    Howell 704 

Thomasson  v.   Wilson 2 

Thompson,  In  re 572 

Thompson  v.  Adams 80,  95 

Thompson  i\  Becker 88 

Thompson  v.  Sanford 87 

Thompson's  Estate,  In  re , .  635 

Thomson's  Ex'rs  v.  Norris 314 

Thorington  v.   Thorington 307,  314 

Thornton  v.  Natcliez 4 

Thornton  v.  Thornton 391 

Thurston,  In  re 356 

Thurston  v.  Th urston 45 

Tillinsfhast  v.  Bradford 676 

TinlcJer  v.  Forhcs 4 

Tippetts  d  iSi eichould" s  Contract..  650 

Toilet  V.  Toilet 366 

Tollett  V.  Armstrong 651 

Tolman  v.  Portbunj 16 

To7nlinson,  In  re 364 

Townshend  v.  Wmdham 362,  364 

Treasure,  In  re 363 

Trcdennick  v.  Tredennick 569 

Treharne  v.  Layton 242 

Tritton,  In  re 173 

Trotter  v.  Oswald 252 

Troughton  v.  Tronghton 362 

Trustees  of  Hollis'  Hospital,  In  re  475 
Trustees  of  Union  College  v.  New 

York 4 

Tucker  v.  Adams 45,  143 

Tugman  v.  Hopkins 364 

WurnJmll   v.   Hayes 399 

Turner  v.  Hause 2 

Turner  v.  Moor 237 

Turney,  In  re 230 

Tyler,  In  re 582 

Tyler  v.  Theilig 196 

Tyrrell's  Estate,  In  re 475 

Vnderhill  v.  Saratoga  &  W.  R.  Co.  3 

Union  College  v.  New  York 4 

Uiiion  Pac.  R.  Co.  v.  Cook 705 

Upington  v.  Corrigan 10 

Vanatta  v.  Carr 407 

Tandcrplank  v.  King 257,  446 

Van  Grutten  v.  Foxwell 113,  136 

Yan  Hagan,  In  re 356 

Van  Home  v.  Campbell 626 

Varley  v.  Coppard 15 

Vestal  V.  Garrett 32 

Vinson  v.    Vitison 34 

Vize  V.  Stoney 225 

Waddell  v.  Rattew 45 

Wafer  v.  Mocato 25 

Wainman  v.  Field 556 


Page 
Wait,  In  re 390 

Waite  V.  Littleicood 198 

Wake  V.  Yarah 198 

Wakefield  v.  Wakefield 80 

Wales'  Adtn'r  v.  Bowdish's  Ex'r. .  359 

Walker  v.  Mackie 385 

Walker  v.  Mackie 385 

Walker  v.  Shore 260 

Wall  V.  Goodenough 2 

Wallace  v.  Foxwell 661 

Walpole  V.  Comoay 72,  75 

Walsh  V.   Wallinger 349 

Warden  v.  Richards 335 

Wardwell  v.  McDoioell 335 

Ware  v.  Conn 605 

Ware  v.  Rowland 193 

Warner  v.  Connecticut  Mut.  Life 

Ins.   Co 399 

Warwick  v.   Gerrard 35 

Waters  v.  Waters 237 

Watkins  v.   Williams 609 

Watson   V.   Dodd 88 

Watson  V.  Hayes 208 

Watson  V.  Watson 237 

Watson  V.   Young 548 

Watts  V.  Clardy 143 

Webb  V.  Hearing 66 

Wehh  V.  Honnor 384,  385,  387 

Weekes'  Settlement,  In  re. , 350 

Wehrhane  v.  Safe  Deposit  Co 115 

Weinreich  v.  Weinreich 3 

Welch  V.  Brimmer 196 

Welch    V.    Episcopal    Theological 

School 702 

Weld  V.  Bradbury 257 

Weld  V.  Bradhury 99 

Welsh  V.  Woodbury 634 

Wenmoth's  Estate,  In  re •  274 

Wescott  V.  Meeker 143 

Wescott's    Case 55 

West  V.  Berney 308 

West    V.    Fitz 41 

Whall  V.  Converse 193 

Wharton  v.  Mastermati 695 

Wharton  v.  Masterman 596 

Wheable  v.  Withers 237 

Whitaker  v.  Whitaker 95 

Whitby    V.    Mitchell 456 

Whitby  V.  Mitchell 460 

White  V.   Collins 116 

White  V.   Hicks 384 

White  V.  McPhceters 88 

White  V.  Mass.  Inst,  of  Tech 359 

White  V.  Summers 61 

White  V.  Taylor 335 

White  V.  Warner 25 

White's  Trusts,  In  re 346 

Whitehead  v.  Bennett 560 

Wicker  v.  Ray 115 

Wigan  V.  Jones 302 

Wiggin  V.  Perkins 67 

Wight  V.  Thayer 136 


TABLE    OF    CASES 


XXIX 


Page 

WilcocJcg'  Settlement,  In  re 609 

Wihoxon  V.  Reese 338 

Wild's  Case 90 

Wild's  Case 90 

Wilkes  V.  Holmes 30S 

Wilkes   V.   Lion 562 

Wilkinson  v.  Duuian 569 

Wilks  V.  Burns 331 

Will<ird  V.   Ware 399 

Williams,  In  re 396 

Williams,  In  re 230 

Williams  v.  Asli 600 

Williiims  V.  Elliott 630 

Willi-ams  v.   Est  en 87,  88 

Williams  v.  Hcrrick 500 

Williiims  V.  Lomas 363 

Willi.ams  v.  Teale 446 

Willing  V.  Baine 203 

Willis  V.  Hiscox 110 

Willis  V.   Martin 70 

Willis  V.  Martin 72,  75 

}\ills  V.  Coivper  d  Parker 338 

Wilmer's  Trusts,  In  re 417 

Wilson   V.    Cockrill I.s3 

Wilson  V.  Dugitid 347 

Wilson  V.  Jones  &  Tapp 25 

Wilso7i  V.  Knox 230 

Wilson  V.  Pigr/ott 332 

Wilson  V.  Wilson 252,  502,  555 

Winsor  v.  Mills 500 

Winter  v.  Dibble 143 

Wintle,  In  re 230 


Page 

Wolfe  V.  nines 335 

WoUaston  v.   King 509 

Wood,  In  re 050 

Wood  V.   Burnham 115 

Wood  V.  Morton 2 

Wood  V.  Robertson 80 

Woodall  V.  Briicn 475 

Woodall  V.  Clifton 408 

Woodbridge  v,  Jones 404 

Woodruff  V.  Water  Power  Co 4 

Woodruff  V.   Woodruff 3 

Wooldridge's  Ileirs  v.  Watkins. . .  335 

Wooster  i\   Cooler 393 

Worthing  Corp.  v.  Heather 595 

Worthing   Coriioration   v.    Heath- 
er      490 

Wrey,  In  re 225 

Wright  v.  Pearson 113,  136 

Wright  v.  Stephens 238 

Wright  v.   Wilken 3 

Wrightson,  In  re 60 

Wrightson  v.  Macaulay 196 

Wi/man  v.  Broun 34 

Wyndham  v.  Wyndham 261 

Wynne  v.  Haickins 608 

Yalden,  In  re 609 

Yates  V.  Compton 336 

Young  v.   Turner 244 

Young  v.  Waterpark 332 

Young  v.    Young 88 

Younghusband   v,    Gisborne 669 


t 


B 


CASES  ON  PROPERTY 


FUTURE  INTERESTS 


PART  I 

CLASSIFICATION  OF  FUTURE  INTERESTS 


CHAPTER  I 
RIGHTS  OF  ENTRY  FOR  CONDITION  BROKEN 


SECTION  I.— VALIDITY  AND  CONSTRUCTION 


LIT.  §  325.     Estates  which  men  have  in  lands  or  tenements  upon  f 

condition  are  of  two  sorts,  viz.,  either  they  have  estate  upon  condition  '  '"^"  • 
in  deed,  or  upon  condition  in  law,  &c.  L^pon  condition  in  deed  is,  as  if  ru.  I 
a  man  by  deed  indented  enfeoffs  another  in  fee  simple,  reserving  to  him 
and  his  heirs  yearly  a  certain  rent  payable  at  one  feast  or  divers  feasts 
per  annum,  on  condition  that  if  the  rent  be  behind,  &c.,  that  it  shall 
be  lawful  for  the  feoffor  and  his  heirs  into  the  same  lands  or  tenements 
to  enter,  &c.  And  if  it  happen  the  rent  to  be  behind  by  a  week  after 
any  day  of  payment  of  it,  or  by  a  month  after  any  day  of  payment  of  it, 
or  by  half  a  year,  &c.,  that  then  it  shall  be  lawful  to  the  feoffor  and 
his  heirs  to  enter,  &c.  In  these  cases  if  the  rent  be  not  paid  at  such 
time,  or  before  such  time  limited  and  specified  within  the  condition 
comprised  in  the  indenture,  then  may  the  feoffor  or  his  heirs  enter  into 
such  lands  or  tenements,  and  them  in  his  former  estate  to  have  and  hold, 
and  the  feoffee  quite  to  oust  thereof.  And  it  is  called  an  estate  upon 
condition,  because  that  the  state  of  the  feoffee  is  defeasible,  if  the  con- 
dition be  not  performed,  &c. 
4  Kalks  Prop. — 1 


2  CLASSIFICATION  OF  FUTURE   INTERESTS  (Part  1 

LIT.  §  326.  In  the  same  manner  it  is  if  lands  be  given  in  tail,  or  let 
for  term  of  life  or  of  years,  upon  condition,  &c.^ 

1  The  same  ruling  occurs  A\liere  a  term  for  years  is  assigned  subject  to  a 
condition  subsequent  and  right  of  re-entrj'  for  condition  broken,  so  that 
no  reversion  remains  in  the  assignor.  Doe  d.  Freeman  v.  Batexnan,  2  B.  & 
AM:TG5. 

A  fortiori,  where  there  is  a  reversion  in  the  ci'eator  of  a  particular  es- 
tate, the  interest  created  may  be  made  subject  to  forfeiture  in  favor  of 
the  reversioner  for  the  breach  of  a  condition  subsequent. 

Note  ox  Conditions  in  Law.^LjY.  §  S7iS.  Estates  which  men  have  upon 
condition  in  law,  are  such  estates  which  have  a  condition  by  the  law  to  them 
annexed,  albeit  that  it  be  not  specified  in  writing.  As  if  a  man  grant  by  his 
deed  to  another  the  office  of  parkership  of  a  park,  to  have  and  occupy  the  same 
office  for  term  of  his  life,  the  estate  which  he  hath  in  the  office  is  upon  con- 
dition in  law,  to  wit.  that  the  parker  shall  well  and  lawfully  keep  the  park, 
and  shall  do  that  which  to  such  office  belongeth  to  do,  or  otherwise  it  shall 
be  lawful  to  the  grantor  and  his  heirs  to  oust  him,  and  to  grant  it  to  another 
if  he  will,  &c.  And  such  condition  as  is  intended  by  the  law  to  be  annexed 
to  anything,  is  as  strong,  as  if  the  condition  were  put  in  writing. 

Co.  Lit.  233  h.  As  to  conditions  in  law,  you  shall  understand  thej'  be  of 
two  natures,  that  is  to  say,  by  the  common  law,  and  by  Statute.  And  those 
by  the  common  law  are  of  two  natures,  that  is  to  say,  the  one  is  founded  up- 
on skill  and  confidence,  the  other  without  skill  or  confidence:  upon  skill  and 
confidence,  as  here  the  office  of  parkership,  and  other  offices  in  the  next  sec- 
tion mentioned,  and  the  like. 

Touching  conditions  in  law  without  skill,  &c.,  some  be  by  the  common  law 
and  some  by  the  statute.  By  the  common  law  as  to  every  estate  of  tenant 
by  the  curtesy,  tenant  in  tail  after  possibility  of  issue  extinct,  tenant  in  dow- 
er, tenant  for  life,  tenant  for  years,  tenant  by  statute  merchant  or  staple, 
tenant  by  elegit,  guardian,  &c.,  there  is  a  condition  in  law  secretly  annexed  to 
their  estates,  that  if  they  alien  in  fee,  &c.,  that  he  in  the  reversion  or  re- 
mainder may  enter,  et  sic  de  similibus,  or  if  they  claim  a  greater  estate  in 
court  of  record,  and  the  like. 

In  Case  of  Leaseholds — Implied  Condition  that  a  Tenant  shall  not 
Repudiate  the  Tenancy  and  CLAi>r  to  Hold  against  the  Landlord. — It  is 
clear  that  if  a  tenant  not  only  disclaims  to  hold  under  his  landlord,  but  ac- 
knowledges another  as  such  and  pays  rent  to  him,  the  former  may,  without 
any  formality,  elect  to  forfeit  the  tenancy  and  sue  for  possession  in  a  forcible 
detainer  suit  against  the  tenant  and  the  new  landlord  whom  he  has  acknowl- 
edged. Ballance  v.  Fortier,  3  Gilni.  (111.)  291 ;  Fortier  v.  Ballance,  5  Gilm. 
(111.)  41;  McCartney  v.  Hunt,  16  111.  76;  Cox  v.  Cunningham,  77  111.  545; 
Doty  v.  Burdick,  8.3  111.  473;  Wall  v.  Goodenough,  16  111.  415  (serable).  It 
seems,  also,  that  the  giving  up  of  possession  by  a  tenant  to  a  stranger  who 
takes  on  assignment  or  sublease  from  the  tenant,  but  claims  to  hold  under  a 
paramount  title  is  a  sufficient  ground  for  the  immediate  forfeiture  of  the 
original  lease.  Upon  such  forfeiture  the  landlord  may  at  once  maintain 
forcible  detainer  against  the  stranger.  Hardin  v.  Forsythe,  99  111.  312 ; 
Thomasson  v.  Wilson,  146  111.  384,  34  N.  E.  432.  Even  a  mere  oral  dis- 
claimer by  the  tenant,  coupled  with  the  claim  of  title  in  himself,  is,  in  this 
state,  a  sulficient  ground  of  forfeiture.  Fusselman  v.  Worthington,  14  111. 
135;  McGinnis  v.  Fernandes,  126  111.  228.  19  N.  E.  44;  Brown  v.  Keller,  32 
111.  151,  83  Am.  Dec,  258 ;  Herrell  v.  Sizeland,  81  111.  457 ;  Wood  v.  Morton, 
11  111.  547.  Tlie  attempt  by  a  tenant  to  transfer  more  than  he  has  operates 
as  an  assignment  of  his  interest.    Turner  v.  Hause,  199  111.  4(54,  65  N.  E.  445. 

Quaere:     Does  such  a  conveyance  by  itself  furnish  a  ground  of  forfeiture? 

It  has  been  said  that  any  conveyance  by  a  tenant  at  sufferance  will  forfeit 
the  tenancy.  Proctor  v.  Tows,  115  111.  138,  150,  3  N.  E.  569.  The  owner, 
however,  is  always  entitled  to  possession  as  against  a  tenant  at  sufferance. 

For  the  form  and  effect  of  statutes  making  every  breach  of  a  covenant  in 
a  lease  a  ground  of  forfeiture,  see  Kales,  Future  Interests,  §§  24,  25. 


Ch.  1^  RIGHTS   OF   ENTRY   FOR   CONDITION  BROKEV  3 

LIT.  §  328.  Also,  divers  words  (amongst  others)  there  be,  which  by 
virtue  of  themselves  make  estates  upon  condition ;  one  is  the  word  sub 
conditione:  as  if  A.  infeoff  B.  of  certain  land,  to  have  and  to  hold  to 
the  said  B.  and  his  heirs,  upon  condition  (sub  conditione),  that  the  said 
B.  and  his  heirs  do  pay  or  cause  to  be  paid  to  the  aforesaid  A.  and  his 
heirs  yearly  such  a  rent,  &c.  In  this  case  without  any  more  saying  the 
feoffee  hath  an  estate  upon  condition. 


WoT^  r 


LIT.  §  329.  Also,  if  the  words  were  such,  Provided  always,  that  the 
aforesaid  B.  do  pay  or  cause  to  be  paid  to  the  aforesaid  A.  such  a  rent, 
&c.,  or  these.  So  that  the  said  B.  do  pay  or  cause  to  be  paid  to  the  said 
A.  such  a  rent,  &c.,  in  these  cases  without  more  saying,  the  feoffee  hath 
but  an  estate  upon  condition;  so  as  if  he  doth  not  perform  the  condi- 
tion, the  feoffor  and  his  heirs  may  enter,  &c.^ 


LIT.  §  330.  Also,  there  be  other  words  in  a  deed  which  cause  the 
tenements  to  be  conditional.  As  if  upon  such  feoft'ment  a  rent  be  re- 
served to  the  feoffor.  Sec,  and  afterward  this  word  is  put  into  the  deed, 

2  Accord:  Gray  v.  Blanchard,  8  Pick.  (Mass.)  284  (1820);  Hays  v.  St.  Paul 
Church,  196  111.  633,  63  N.  E.  1040;  Supervisors  Warren  Co.  v.  Pattersou, 
56  III.  111.  120 ;  Harris  v,  Shaw,  13  111.  456 ;  Blanchard  v.  Detroit.  Lansing 
&  Lake  Michigan  E.  Co.,  31  Mich.  43,  18  Am.  Rep.  142;  Hammond  v.  Port 
Royal  and  Augusta  Railway  Co.,  15  S.  C.  10;  Taylor  v.  Cedar  Rapids  and 
St.  Paul  R.  R.  Co.,  25  Iowa.  371 ;  May  v.  Boston.  158  Mass.  21,  32  N.  E.  902 ; 
Papst  V.  Hamilton.  133  Cal.  631.  66  Pae.  10;  Adams  v.  Valentine  (C.  C.)  33 
Fed.  1;  Reicheubach  v.  Washington,  etc.,  Ry.  Co.,  10  Wa.sh.  357,  38  Pac. 
1126;  Mills  v.  Seattle,  etc.,  Ry.  Co.,  10  Wash.  520,  39  Pac.  246;  Brown  v. 
Chicago  &  X.  W.  Ry.  Co.  (Iowa)  82  N.  W.  1003;  Underhill  v.  Saratoga  and 
Washington  R.  R.  Co.,  20  Barb.  (N.  Y.)  455;  Mead  v.  Ballard,  74  U.  S.  (7 
Wall.)  2U0,  19  L.  Ed.  190;  Hooper  v.  Cummings,  45  Me.  359;  Chapman  v. 
Pingree,  67  Me.  198;  Weinreich  v.  Weinreich,  18  Mo.  App.  364;  Parsons  v. 
Miller,  15  Wend.  (N.  Y.)  561 ;    Littleton,  §§  328-331. 

Contra:  Elyton  Land  Co.  v.  South  and  North  Alabama  R.  R.  Co..  100  Ala. 
396,  14  South.  207 ;    Druecker  v.  McLaughlin,  235  111.  367,  85  X.  E.  647. 

Compare,  however,  Post  v.  Weil,  115  X.  Y.  361,  22  X.  E.  145,  5  L.  R.  A.  422 ; 
12  Am.  St.  Rep.  809  (18S9) ;  Avery  v.  Xew  York  Central,  etc.,  R.  R.  Co.,  106 
N.  Y.  142,  12  N.  E.  619 ;  Stilwell  v.  S.  L.  &  H.  Ry.  Co.,  39  Mo.  App.  221 ;  Ay- 
ling  V.  Kramer,  133  Mass.  12. 

If  the  words  of  condition  required  the  grantor  instead  of  the  grantee  to 
do  something,  they  have  been  held  to  create  only  a  covenant.  Paschall  v. 
Passniore.  15  Pa.  295,  307-309;  Woodriiff  v.  Woodruff,  44  X.  J.  Eq.  349,  16 
Atl.  4,  1  L.  R.  A.  380.  So,  if  the  word  "condition"  is  used  in  a  will,  the  con- 
text frequently  shows  that  it  was  used  as  a  word  designating  the  trusts  of  a 
fund  or  the  charging  of  a  gift  with  the  payment  of  legacies.  Stanlev  v. 
Colt,  5  Wall.  119,  IS  L.  Ed.  502 ;  Wright  v.  Wilken,  2  B.  &  S.  232  (110  Eng. 
Com.  Law  Reports) ;  Atty.  Gen.  v.  CoriKiration  of  South  Moulton,  14  Beav. 
357;  Atty.  Gen.  v.  Wax  Chandlers  Co.,  42  L.  J.  Ch.  425;  Sohier  v.  Trinity 
Church,  109  Mass.  1.  The  cases  of  unclassified  special  contexts  where  the 
word  ''condition"  has  been  construed  to  create  a  covenant  are  legion.  Eck- 
hart  V.  Irons.  128  111.  568.  20  X.  E.  687 ;  Portland  v.  Terwilliger.  16  Or.  465, 
19  Pac.  90;  Minard  v.  Delaware  Co.  (C.  C.)  1.39  Fed.  60;  Los  Angeles  Uni- 
\ersitv  v.  Swarth,  107  Fed.  798,  46  C.  C.  A.  647,  54  L.  R.  A.  262. 


4  CLASSIFICATION  OF  FUTURE   INTERESTS  (Part  1 

That  if  it  happen  the  aforesaid  rent  to  be  behind  in  part  or  in  all,  that 
then  it  shall  be  lawful  for  the  feoffor  and  his  heirs  to  enter,  &c.,  this  is 
a  deed  upon  condition.^ 


LIT.  §  331.  But  there  is  a  diversity  between  this  word  si  contingat, 
&c.,  and  the  words  next  afo'fesaid,  &c.  For  these  words,  si  contingat, 
&c.,  are  nought  worth  to  such  a  condition,  unless  it  hath  these  words 
following,  That  it  shall  be  lawful  for  the  feoffor  and  his  heirs  to  enter, 
&c.*  But  in  the  cases  aforesaid,  it  is  not  necessary  by  the  law  to  put 
such  a  clause,  scilicet,  that  the  feoffor  and  his  heirs  may  enter,  &c., 
because  they  may  do  this  by  force  of  the  words  aforesaid,  for  that  they 
contain  in  themselves  a  condition,  scilicet,  that  the  feoffor  and  his  heirs 
may  enter,  &c.  Yet  it  is  commonly  used  in  all  such  cases  aforesaid  to 
put  the  clauses  in  the  deeds,  scilicet,  if  the  rent  be  behind,  &c.,  that  it 
shall  be  lawful  to  the  feoffor  and  his  heirs  to  enter,  &c.  And  this  is 
well  done,  for  this  intent,  to  declare  and  express  to  the  common  people, 
who  are  not  learned  in  the  law,  of  the  manner  and  condition  of  the 
feoffment,  &c.  As  if  a  man  seised  of  land  letteth  the  same  land  to 
another  by  deed  indetifed  for  term  of  years,  rendering  to  him  a  certain 


3  Where  the  conveyance  is  merely  for  certain  express  purposes,  or  upon  a 
motive  expressed,  or  upon  a  certain  consideration,  coupled  with  a  re-entry 
clause,  the  estate  is  upon  a  condition  subsequent.  Atty.  Gen.  v.  Merrimack 
Manufacturing  Co.,  SO  Mass.  (14  Gray)  5SG ;  Woodruff  v.  Water  Power  Com- 
pany. 10  N.  J.  Eq.  4S9 ;  Hamel  v.  Minneapolis,  St.  P.  &  S.  S.  M.  Ry.,  97  Minn. 
334,  107  N.  W.  139. 

A  fortiori,  where  words  of  condition  and  a  re-entry  clause  are  both  used, 
the  estate  conveyed  is  held  subject  to  a  condition  subsequent.  Grav  v.  C, 
M.  &  St.  P.  Rv.  Co.,  189  111.  400,  59  N.  E.  950;  Trustees  of  Union  College  t. 
Citv  of  New  York,  65  App.  Dlv.  553,  73  N.  Y.  Supp.  51;  Moss  v.  Chappell, 
126  Cia.  190,  54  S.  E.  96S,  11  L.  R.  A.  (N.  S.)  398;  Minard  v.  Delaware  Ry. 
(C.  C.)  139  Fed.  60;  Brown  v.  Tilley,  25  R.  I.  579,  57  Atl.  380;  Austin  v. 
Cambridge  Port  Parish,  21  Pick.  (Mass.)  215;  Houston  &  T.  C.  R.  Co.  v. 
Ennis-Calvert  Co.,  23  Tex.  Civ.  App.  441,  56  S.  W.  367 ;  Hoyt  v.  Ketcham,  54 
Conn.  60,  5  Atl.  606. 
1/  4  Similarly,  if  there  is  no  re-entry  clause,  the  estate  is  not  subject  to  a 

condition  subsequent  where  the  conveyance  is  merely  declared  to  be  for  cer- 
tain express  purposes  or  upon  a  motive  expressed  (Tinkler  v.  Forbes,  136  111. 
ly^A-  221,  2.39,  26  N.  E.  503;  Thornton  v.  City  of  Natchez,  88  Miss.  1,  41  South. 
498;  Thornton  v.  City  of  Natchez,  129  Fed.  84,  63  C.  C.  A.  526;  Barker  v. 
Barrows,  138  Mass.  578 ;  Long  v.  Moore,  19  Tex.  Civ.  App.  363.  48  S.  W.  43 ; 
Faith  V.  Bowles,  86  Md.  13,  37  Atl.  711,  63  Am.  St.  Rep.  489 ;  Field  v.  Prov- 
idence, 17  R.  I.  803,  24  Atl.  143 ;  Horner  v.  C,  M.  &  St.  P.  Ry.  Co.,  38  Wis. 
165,  175;  Rawsou  v.  School  District,  7  Allen  [Mass.]  125,  83  Am.  Dec.  670. 
See  also  Greene  v.  O'Connor,  18  R.  I.  56,  25  Atl.  692,  19  L.  R.  A.  262;  Avery 
V.  U.  S.,  104  Fed.  711,  44  C.  C.  A.  161 ;  Kilpatrick  v.  Mayor,  81  Md.  179.  31 
Atl.  805,  27  L.  R.  A.  643,  48  Am.  St.  Rep.  509 ;  Collins  v.  Brackett,  34  Minn, 
339,  25  N.  W.  708) ;  or  "upon  a  certain  consideration"  (Letchworth  v.  Vaughiui, 
77  Ark.  305,  90  S.  W.  1001.  See,  however,  Close  v.  Railroad,  64  Iowa,  150, 
19  N.  W.  886;  Railroad  v.  Hood,  66  Ind.  580);  or  "upon  the  express  agree- 
ment" (Ilawley  v.  Kafitz,  148  Cal.  393,  S3  Pac.  248,  3  L.  R.  A.  [N.  S.]  741,  113 
Am.  St.  Rep.  282) ;  or  '"provided,  however,  the  grantee  shall  do  thus  and  so" 
(King  V.  Norfolk  &  Western  Ry.  Co.,  99  Va.  625,  39  S.  E.  701;  Cassidy  v. 
Mason,  171  Mass.  507,  .50  N.  E.  1027;  Incorporated  Village  of  Ashland  v. 
Greiner,  58  Ohio  St,  67,  50  N.  E.  99). 


%'  <^, 


Ch.  1)  RIGHTS  OF   ENTRY  FOR   CONDITION  BROKEN  5 

rent,  it  is  used  to  be  put  into  the  deed,  that  if  the  rent  be  behind  at  the 
day  of  payment,  or  by  the  space  of  a  week  or  a  month,  &c.,  that  then  it 
shall  be  lawful  to  the  lessor  to  distrain,  &c.,  yet  the  lessor  may  distrain 
of  common  right  for  the  rent  behind,  &c.,  though  such  words  were  not 
put  into  the  deed,  &c. 


SHEP.  TOUCH.  120.  The  nature  of  an  express  condition  annexed  / 
to  an  estate  in  general,  is  this :  that  it  cannot  be  made  by  nor  reserved 
to  a  stranger;  but  itjnust  be  made  bj  and  reserve^  to^ !Tilm"tHat"3oth 
make  the  estate.  And  it  cannot  be  granted  over  to  another,  except  it 
be~lo~and  with  the  land  or  thing  unto  which  it  is  annexed  and  incident. 
An^^scTlt  is  not  grantable  in  all  cases;  for  the  estates  of  both  the 
parties  are  so  suspended  by  the  condition,  that  neither  of  them  alone 
can  well  make  any  estate  or  charge  of  or  upon  the  land ;  for  the  party 
that  doth  depart  with  the  estate,  and  hath  nothing  but  a  possibility  to 
have  the  "thing  again  upon  the  performance  or  breach  of  the  condition, 
cannot  grant  or  charge  the  thing  at  all.  And  if  he  that  hath  the  estate, 
grant  or  charge  it,  it  will  be  subject  to  theToridrtion  still;  for  the  con- 
dftion  doth  always  attend  and  wait  upon  the  estate  or  thing  whereunto 

it  is  annexed :    so  that  although  the  same  do  pass  through  the  hands  -      >t,^ 

of  an  hundred  men,  yet  is  it  subject  to  the  condition  still;    and  albeit   ^^i^w,  ^C, ^   ^^'-s^J 
some  of  them  be  persons  privileged  in  divers  cases,  as  the  king,  in-      iv.    cw^duZ* 
fants,  and  women  covert,  yet  they  are  also  bound  by  the  condition. 
And  a  man  that  comes  to  the  thing  by  wrong,  as  a  disseisor  of  land, 
whereof  there  is  an  estate  upon  condition  in  being,  shall  hold  the  sanie 
subject  to  the  condition  also.  """ 


•3', 


SECTION  2.— WHO  MAY  TAKE  ADVANTAGE  OF  THE 
BREACH  OF  CONDITION 


LIT.  §  347:    No  entry  nor  re-entry  (which  is  all  one)  may  be  re-  ^  , 

served  or  given  to  any  person,  but  only  to  the  feoffor,  or  to  the  donor,  --"*^'^*'-)   f- 
or  to  the  lessor,  or  to  their  heirs :    and  such  re-entry  cannot  be  given     ^"    '^  -  '■ 
to  any  other  person.    For  if  a  man  letteth  land  to  another  for  term  of 
life  by  indenture,  rendering  to  the  lessor  and  to  his  heirs  a  certain 
rent,  and  for  default  of  payment  a  re-entry,  &c.,  if  afterward  the  les-  ' 
sor  by  a  deed  granteth  the  reversion  of  the  land  to  another  in  fee,  and 
the  tenant  for  term  of  life  attorn,  &c.,  if  the  rent  be  after  behind,  the      -  - 
grantee  of  a  reversion  may  distrain  for  the  rent,  because  that  the  rent 
is  incident  to  the  reversion ;   but  he  may  not  enter  into  the  land,  and 
oust  the  tenant,  as  the  lessor  might  have  done,  or  his  heirs,  if  the  re- 
version had  been  continued  in  them,  &c.     And  in  this  case  the  entry 
is  taken  away  forever;    for  the  grantee  of  the  reversion  cannot  enter. 


6  CLASSIFICATION   OF   FUTURE   INTERESTS  (Part  1 

causa  qua  supra.  And  the  lessor  nor  his  heirs  cannot  enter ;  for  if 
the  lessor  might  enter,  then  he  ought  to  be  in  his  former  state,  &c., 
and  this  may  not  be,  because  he  hath  aliened  from  him  the  reversion. 


U. 


r 


CO.  LIT.  215  a:  Another  diversity  is  between  conditions  in  deed, 
whereof  sufificient  hath  been  said  before,  and  conditions  in  law.  As  if 
a  man  make  a  lease  for  life,  there  is  a  condition  in  law  annexed  unto 
it,  that  if  the  lessee  doth  make  a  greater  estate,  &c.,  that  then  the  les- 
sor may  enter.  Of  this  and  the  like  conditions  in  law,  which  do  give 
an  entry  to  the  lessor,  the  lessor  himself  and  his  Heirs  shall  not  only 
take  benefit  of  it,  but  also  his  assignee  and  the  lord  by  escheat,  every 
one  for  the  condition  in  law  broken  in  their  own  time.  Another  di- 
versity there  is  between  the  judgment  of  the  common  law,  whereof 
Littleton  wrote,  and  the  law  at  this  day  by  force  of  the  Statute  of 
*»*-^*-'  32  H.  8,  c.  34.    For  by  the  common  law  no  grantee  or  assignee  of  the 

..       w  reversion  could  (as  hath  been  said)  take  advantage  of  a  re-entry  by 

^  force  of  any  condition.     For  at  the  common  law,  if  a  man  had  made 

a  lease  for  life  reserving  a  rent,  &c.,  and,  if  the  rent  be  behind,  a  re- 
entry, and  the  lessor  grant  the  reversion  over,  the  grantee  should  take 
no  benefit  of  the  condition,  for  the  cause  before  rehearsed.  But  now 
by  the  said  Statute  of  32  H.  8,  the  grantee  may  take  advantage  thereof, 
and  upon  demand  of  the  rent,  and  non-payment,  he  may  re-enter.  By 
which  Act  it  is  provided,  that  as  well  every  person  which  shall  have  any 
grant  of  the  king  of  any  reversion,  &c.,  of  any  lands,  &c.,  which  per- 
tained to  monasteries,  &c.,  as  also  all  other  persons  being  grantees  or 
assignees,  &c.,  to  or  by  any  other  person  or  persons,  and  their  heirs, 
executors,  successors,  and  assignees  shall  have  like  advantage  against 
the  lessees,  &c.,  by  entry  for  non-payment  of  tlie  rent,  or  for  doing  of 
waste  or  other  forfeiture,  &c.,  as  the  said  lessors  or  grantors  themselves 
ought  or  might  have  had.  Upon  this  Act  divers  resolutions  and  judg- 
ments have  been  given,  which  are  necessary  to  be  known. 

\.  That  the  said  Statute  is  general,  viz.,  that  the  grantee  of  the  re- 
version of  every  common  person,  as  well  as  of  the  king,  shall  take  ad- 
vantage of  conditions. 

2.  That  the  Statute  doth  extend  to  grants  made  by  the  successors  of 
the  king,  albeit  the  king  be  only  named  in  the  Act. 

3.  That  where  the  Statute  speaketh  of  lessees,  that  the  same  doth 
not  extend  to  gifts  in  tail. 

4.  That  where  the  Statute  speaks  of  grantees  and  assignees  of  the  re- 
version, that  an  assignee  of  part  of  tlie  state  of  the  reversion  may  take 
advantage  of  the  condition.  As  if  lessee  for  life  be,  &c.,  and  the  re- 
version is  granted  for  life,  &c.  So  if  lessee  for  years,  &c.,  be,  and  the 
reversion  is  granted  for  years,  the  grantee  for  years  shall  take  benefit 
of  the  condition  in  respect  of  this  word  (executors)  in  the  Act. 


Ch.  1)  RIGnTS   OF   ENTRY   FOR   CONDITION   BROKEN  7 

5.  That  a  grantee  of  part  of  the  reversion  shall  not  take  advantage 
of  the  condition  ;3as  if  the  lease  be  of  three  acres,  reserving  a  rent  upon 
condition,  and  the  reversion  is  granted  of  two  acres,  the  rent  shall  be 
apportioned  by  the  act  of  the  parties,  but  the  condition  is  destroyed, 
f o rlhatjt  is  gntire  and  against  common  right. 

6.  "That  in^hc  king's  case,  the  condition  in  that  case  is  not  destroyed, 
but  remains  still  in  the  idng. 

7.  By  act  in  law  a  condition  may  be  apportioned  in  the  case  of  a 
comm^^personT  as  if  a  lease  for  years  be  made  of  two  acres,  one^f 
th6TTaiEifre'or~bb rough  English,  the  other  at  the  conirnoii  law,  and  the 
lessor  having  issue  two  sons,  dieth,  each  of  them  shall  enter  for  the 
condition  broken,  andlTkew'ise  a  conditTori  sliall  be  apportioned  by  the 
act  and  wrong  of  the  lessee,  as  hath  been  said  in  the  chapter  of  Rents. 


LIT.  §  348 :  Also,  if  lord  and  tenant  be,  and  the  tenant  make  a  lease 
for  term  of  life,  rendering  to  the  lessor  and  his  heirs  such  an  annual 
rent,  and  for  default  of  payment  a  re-entry,  &c.,  if  after  the  lessor 
dieth  without  heir  during  the  life  of  the  tenant  for  life,  whereby  the  re- 
version Cometh  to  the  lord  by  way  of  escheat,  and  after  tlie  rent  of 
the  tenant  for  life  is  behind,  the  lord  may  distrain  the  tenant  for  the 
rent  behind;  but  he  may  not  enter  into"  tbe  land  by  force  of  the  con- 
dition, &c.,  because  thatne  is  not  heir  to  the  lessor,  &c. 


RICE  v.  BOSTON  &  W.  R.  CORP. 

(Supreme  Judicial  Court  of  Massachusetts,  1S66.     12  Allen,  141.) 

Writ  of  entry  to  recover  a  parcel  of  land  in  Brighton, 
At  the  trial  in  the  Superior  Court,  before  Vose,  J.,  it  appeared  that 
on  the  12th  day  of  May,  1834,  the  demandant's  father  conveyed  the  de- 
manded premises  to  the  tenants  by  a  deed  of  warranty,  which  stated 
that  the  conveyance  was  made  upon  the  express  condition  that  the  cor^ 
poration  should  forever  maintain  and  keep  in  good  repair  a  pass^way 
over  the  same,  and  also  certain  fences ;  the  premises  being  land  over 
which  the  railroad  of  the  tenants  passes.  The  demandant's  father  then 
in  June,  1842,  conveyed  to  the  demandant  a  large  tract  of  land,  the  de- 
scription of  which  included  the  demanded  premises,  by  a  deed  of  war- 
ranty; and  died  intestate,  before  any  breach  of  condition.  The  de- 
mandant offeriH"  evidence  oFa  breach' of  condition  after  hts  father's 
death.  No  entry  for  breach  of  condition  was  made  before  bringing 
this  action.  The  judge  excluded  the  offered  evidence,  and  instructed 
the  jury  that  the  demandant  was  not  entitled  to  recover;  and  a  ver- 
dict was  accordingly  returned  for  the  tenants.  The  demandant  alleged 
exceptions. 


8  CLASSIFICATION   OF   FUTURE    INTERESTS  (Part   1 

BiGELOW,  C.  J.  It  is  one  of  the  established  rules  of  the  common  law 
that  the  right  or  possibility  of  reverter  which  belongs  to  a  grantor  of 
an  estate  on  condition  subsequent  cannot  be  legally  conveyed  by  deed 
to^  third  person  before  entry  for  a  breach.  This  rule  is  stated  in  Co. 
Lit.  214  a,  in  these  words:  "Nothing  in  action,  entry,  or  re-entry  can 
be  granted  over;"  and  the  reason  given  is  "for  avoiding  of  mainte- 
nance, suppressing  of  rights,  and  stirring  up  of  suits,"  which  would 
happen  if  men  were  permitted  "to  grant  before  they  be  in  possession." 
This  ancient  doctrine  had  its  origin  in  the  early  Statutes  against  main- 
tenance and  champerty  in  Englau'd,  the  last  of  which,  32  Henr}^  A^III, 
c.  9,  expressly  prohibited  the  granting  or  taking  any  such  right  or  in- 
terest under  penalty,  both  on  the  grantor  and  the  buyer  or  taker,  of 
forfeiting  the  whole  value  of  the  land  or  interest  granted,  or  as  Coke 
expresses  it,  "the  grantor  and  grantee  (albeit  the  grant  be  merely  void) 
are  within  the  danger  of  the  Statute."  Co.  Lit.  369  a.  The  principle 
that  a  mere  right  of  entry  into  land  is  not  the  subject  of  a  valid  grant 
has  been  fully  recognized  and  adopted  in  this  country  as  a  settled  rule 
of  the  law  of  real  property,  both  by  text-writers  and  courts  of  justice. 
2  Cruise  Dig.  (Greenl.  Ed.)  tit.  xiii,  c.  1,  §  15;  1  Washburn  on  Real 
Prop.  453;  2  lb.  599;  1  Smith's  Lead.  Cas.  (5th  Ed.)  113;  Nicoll  v. 
New  York  &  Erie  Railroad,  12  N.  Y.  133;  Williams  v.  Jackson,  5 
Johns.  (N.  Y.)  498 ;  Hooper  v.  Cummings,  45  ^le.  359 ;  Guild  v.  Rich- 
ards, 16  Gray,  309. 

The  effect  of  a  grant  of  a  right  or  possibility  of  reverter  of  an  es- 
tate on  condition  is  thus  stated  in  1  Shep.  Touchstone,  157,  158:  A 
condition  "may  be  discharged  by  matter  ex  post  facto ;  as  in  the  ex- 
amples following.  Ifone  make  a  feoffment  in  fee  of  land  upon  con- 
dition, and  after,  and  before  the  condition  broken,  he  doth  make  an 
absolute  feoffment,  or  levy  a  fine  of  all  or  part  of  the  land,  to  the 
feoffee,  or  any  other;  by  this  the  condition  is  gone  and  discharged  for- 
ever." So  in  5  Vin,  Ab.  Condition  (I,  d  11),  the  rule  is  said  to  be, 
"when  condition  is  once  annexed  to  a  particular  estate,  and  after  by 
other  deed  the  reversion  is  granted  by  the  maker  of  the  condition,  now 
the  condition  is  gone."  See  also  1  Washburn  on  Real  Prop.  453 ; 
Hooper  v.  Cummings,  45  Me.  359.  The  original  maker  of  the  condi- 
tion cannot  enforce  it  after  he  has  parted  with  his  right  of  reverter, 
nor  can  his  alienee  take  advantage  of  a  breach,  because  the  right  was 
not  assignable.  In  the  light  of  these  principles  and  authorities,  it  would 
seem  to  be  very  clear  that  the  original  grantor  of  the  demanded  prem- 
ises destroyed  or  discharged  the  condition  annexed  to  his  grant  to  the 
defendants  by  aliening  the  estate  in  his  lifetime  and  before  any  breach 
of  the  condition  had  taken  place. 

The  only  doubt  which  has  existed  in  our  minds  on  this  point  arises 
from  the  fact  that  the  son  and  heir  of  the  original  grantor  of  the  prem- 
ises is  the  demandant  in  this  action.  But  on  consideration  we  are  satis- 
fied, not  only  that  the  son  took  nothing  by  the  deed,  but  also  that  the 


Ch.  1)  RIGHTS   OF   ENTRY   FOR   CONDITION'   BROKEN  9 

possibility  of  reverter  was  extinguished,  so  that  the  original  grantor 
haH^no  right  of  entry  for  breach  after  his  deed  to  his  son,  and  the  lat- 
ter can  make  no  valid  claim  to  the  demanded  premises  either  as  grantee 
or  as  heir  for  a  breach  of  the  condition  attached  to  the  original  grant. 
A  condition  in  a  grant  of  land  can  be  reserved  only  to  the  grantor  and 
his  heirs.  But  the  latter  can  take  only  by  virtue  of  the  privity  which 
exists  between  ancestor  and  heir.  This  privity  is  essential  to  the  right 
of  the  heir  to  enter.  But  .if  the  original  grantor  aliens  the  right  or 
possibility  in  his  lifetime  before  breach,  the  privity  between  him  and 
his  heirs  as  to  the  possibility  of  reverter  is  broken.  No  one  can  claim 
as  heir  until  the  decease  of  the  grantor,  because  nemo  est  hseres  vi- 
ventis ;  and  upon  his  death  his  heir  has  no  right  of  entry',  because  he 
cannot  inherit  that  which  his  ancestor  had  aliened  in  his  lifetime.  The 
right  of  entry  is  gone  forever.     Perkins,  §§  830-833 ;   Lit.  §  347. 

It  may  be  suggested,  however,  that  if  the  deed  is  void  and  conveys 
no  title  to  the  grantee,  the  right  of  entry  still  remains  in  the  grantor 
and  is  transmissible  to  his  heir.  This  argument  is  inconsistent  with 
the  authorities  already  cited,  which  sanction  the  doctrine  that  aliena- 
tion by  a  grantor  of  an  estate  on  condition  before  breach  extinguishes 
the  condition ;  it  also  loses  sight  of  the  principle  on  which  the  doctrine 
rests.  The  policy  of  the  law  is  to  discourage  maintenance  and  cham- 
perty. Neither  party  to  a  conveyance  which  violates  the  rule  of  law 
can  allege  his  own  unlawful  act  for  the  purpose  of  securing  an  ad- 
vantage to  himself.  The  grantor  of  a  right  of  entry  cannot  be  heard 
to  say  that  his  deed  was  void,  and  that  the  right  of  entry  still  remains 
in  him,  because  this  would  be  to  allow  him  to  set  up  his  own  turpitude 
in  engaging  in  a  champertous  transaction  as  the  foundation  of  his  claim. 
His  deed  is  therefore  effectual  to  estop  him  from  setting  up  its  in- 
vahdity  as  the  ground  of  claiming  a  right  of  entry  which  he  had  un- 
lawfully conveyed.  Nor  can  the  grantee  avail  himself  of  the  grant  of 
the  right  of  entry  for  a  like  reason.  He  cannot  be  permitted  to  set  up 
a  title  which  rests  upon  a  conveyance  which  he  has  taken  in  contraven- 
tion of  the  rules  of  law.  Both  parties  are  therefore  cut  off  from  claim- 
ing any  benefit  of  the  condition.  The  grantor  cannot  aver  the  invalid- 
ity of  his  own  deed,  norjcan  the  grantee  rely  on  its  validity.  Both  be- 
ing partrclpalors  Tri~an  unlawful  transaction,  neither  can  avail  himself 
of  it  to  establish  a  title  in  a  court  of  law.  It  is  always  competent  for 
a  party  in  a  writ  of  entry  to  allege  that  a  deed,  under  which  an  adverse 
title  is  claimed,  although  duly  executed,  passed  no  title  to  the  grantee, 
either  because  the  grantor  was  disseised  at  the  time  of  its  execution, 
or  because  the  deed  for  some  other  reason  did  not  take  effect.  Stearns 
on  Real  Actions,  226. 

We  know  of  no  statute  which  has  changed  the  rules  of  the  common 
law  in  this  commonwealth  in  relation  to  the  alienation  of  a  right  of  en- 
try for  breach  of  a  condition  in  a  deed.  By  these  rules,  without  con- 
sidering the  other  grounds  of  defence  insisted  upon  at  the  trial,  it  is  ap- 


10  CLASSIFICATION  OF  FUTURE   INTERESTS  (Part  1 

parent  that  the  demandant  cannot  recover  the  demanded  premises :   not 
as  heir,  because  he  did  not  inherit  that  which  his  father  had  conveyed 
in  his  lifetime;   nor  as  purchaser,  because  his  deed  was  void. 
Exceptions  overruled.^ 


SECTION  3.— MODE  OF  PERFECTING  A  FORFEITURE 


CO.  LIT.  214  b:  Hereupon  is  to  be  collected  divers  diversities. 
First,  between  a  condition  that  requireth  a  re-entry,  and  a  limitation 
that  ipso  facto  detennincth  the  estate  without  any  entry.  Of  tTiisfiTSt 
soimcTstranger,  as  Littleton  saith,  shall  take  any  advantage,  as  hath 
been  said.  But  of  limitations  it  is  otherwise.  As  if  a  man  make  a 
lease  quousque,  that  is,  until  I.  S.  come  from  Rome,  the  lessor  grant 
the  reversion  over  to  a  stranger,  I.  S.  comes  from  Rome,  the  grantee 
shall  take  advantage  of  it  and  enter,  because  the  estate  by  the  express 
limitation  was  determined. 

So  it  is  if  a  man  make  a  lease  to  a  woman  quamdiu  casta  vixerit,  or 
if  a  man  make  a  lease  for  life  to  a  widow,  si  tamdiu  in  pura  viduitate 
viveret.  So  it  is  if  a  man  make  a  lease  for  a  100  years  if  the  lessee 
live  so  long,  the  lessor  grants  over  the  reversion,  the  lessee  dies,  the 
grantee  may  enter,  causa  qua  stipra.^ 

5  Rights  of  entry  upon  a  fee  for  condition  broken  cannot  be  devised. 
Southard  v.  Central  R.  R.  Co.,  26  N.  J.  Law,  1.3;  rpiugton  v.  Corrisan,  151 
N.  Y.  143,  45  N.  p].  359,  37  L.  R.  A.  794;  Methodist  Church  v.  Young.  130 
N.  C.  8,  40  S.  E.  691.  Contra:  Austin  v.  Canibridgeport  I'arish,  21  Pick. 
(Mass.)  215.  See,  also,  Gray  v.  C,  M.  &  St.  P.  Ry.  Co.,  189  111.  400,  59  N.  E. 
950. 

Under  the  Wills  Act  of  1  Vict.  c.  26,  §  3,  which  makes  devisable  "all  rights 
of  entry  for  conditions  broken,  and  other  rights  of  entry,"  a  right  of  entry 
for  condition  broken  is  devisable  even  before  a  breach  has  occurred  and 
passes  under  a  residuary  devise ,  all  real  estate.  Pemberton  v.  Barnes,  L.  R. 
[1899]  1  Cli.  544.  Where  the  act  provided  that  the  right  of  entry  was  devisa- 
ble and  transmissible  by  deed  "although  the  contingencies  upon  which  such 
right,  estate,  or  interest  are  to  vest  may  not  have  happened,"  it  was  regai'd- 
€d  as  clear  that  the  right  of  entry  was  devisable  before  a  breach.  South- 
ard v.  Central  R.  R.  Co.,  26  N.  J.  Law,  13. 

On  the  descent  of  rights  of  entry,  see  post,  p.  86,  note  31,  on  "Descent  of 
Contingent  Remainders." 

c  "Apt  words  of  limitation  are  quamdiu,  dummodo,  dum,  quousque,  durante, 
&c.,  V.  14  E.  2,  Grant  92,  a  rent  granted  oiit  of  the  manor  of  Dale,  quamdiu 
the  grantor  shall  dwell  there.  Vide  7  E.  4,  16,  quamdiu  fuer'  amicabiles,  27 
n.  8,  29  b;  3  E.  3,  15  a;  and  3  Ass.  p.  9.  A  man  leases  land  dummodo  the 
lessee  shall  pay  twenty  pounds,  37  H.  6,  27.  A  lease  is  made  to  a  woman 
dum  sola  fuerit,  0  E.  4,  29  b.  A  man  made  a  feoffment  in  fee  until,  s. 
quous(iue  the  feofl'or  had  paid  him  certain  money,  21  Ass.  p.  18.  Vide  13  El. 
Dy,  290,  ace'  PI.  Com.  414;  35  Ass.  p.  14.  A  lease  for  years,  if  the  lessee 
shall  so  long  live,  14  H.  8,  13.  A  lease  of  lands  till  he  be  promoted  to  a 
benefice,  &c..  Lit.  chap.  Condit.  90,  during  the  coverture.  All  these,  and  many 
others,  are  words  of  limitation,  by  force  of  which,  the  estate  is  determined 
without  entry  or  claim:  words  of  condition  are  sub  conditione,  ita  quod,  si 
contingat,  proviso,  &c.  Vide  Lit.  c.  Condit.  74  and  75;  3  H.  6,  7  a,  b;  27  H. 
8.  15,  Dy.,  28  H.  8,  13 ;    4  M.  Dy.  139 ;    15  El.  Dy.  318 ;    32  H.  8,  Dy.  47.     But 


Ch.  1)  RIGHTS   OF   ENTRY   FOR   CONDITION   BROKEN  11 

2.  Another  diversity  is  bet\veen  a  condition  annexed  to  a  freehold, 
and  a  condition  annexed  to  a  lease  for  years. 

For  if  a  man  make  a  gift  in  tail  orlTTease  for  life  upon  condition, 
that  if  the  donee  or  lessee  goeth  not  to  Rome  before  such  a  day  the 
gift  or  lease  shall  cease  or  be  void,  the  grantee  of  the  reversion  shall 
never  take  advantage  of  this  condition,  because  the  estate  cannot  cease 
before  an  entry ;  but  if  the  lease  had  been  but  for  years,  there  the 
grantee  should  have  taken  advantage  of  the  like  condition,  bcause  the 
lease  for  years  ipso  facto  by  the  breach  of  the  condition  w^ithout  any 
entry  was  void ;  for  a  lease  for  years  may  begin  without  ceremony, 
and  so  may  end  without  ceremony ;  but  an  estate  of  freehold  cannot 
begin  nor  end  without  ceremony.  And  of  a  void  thing  a  stranger 
may  take  benefit,  but  not  of  a  voidable  estate  by  entry. 


LEAKE,  PROPERTY  IN  LAND  (2d  Ed.)  p.  170:  "A  lease  for 
years  may  begin  without  ceremony,  and  so  may  end  without  cere- 
mony," being  at  common  law  a  mere  matter  of  contract.  Therefore 
a  condition  to  defeat  it  does  not  require  an  actual  entry,  unless  ex- 
pressly stipulated. '^  According  to  the  older  cases,  a  condition  that  in 
a  certain  event  a  lease  should  cease  or  be  void  "was  construed  as  a 
conditional  limitation,  and  the  t£rm  treated  as  ^so_tacto_voi(i ;  but 
the  later  cases  show  that  in  these  circumstances  the  condition  is 
construed  to  render  the  lease  voidable  at  the  option  of  the  lessor,  who 
must  give  notice,  or  do  some  other  acf"sIiowTng  Kis  TiSHTtion' toavoTH 
it.^  Tf  the  view  expressed  in  the  earlier  cases  had  prevailed,  it  would 
Have  permitted  the  lessee  to  put  ap  end  to  the  term  by  his  own  default. 
And  where  a  right  of  re-entry  is  expressed  to  be  given  upon  an  ante- 
cedent notice,  the  election  of  the  lessor  to  resume  possession  is  finally 
exercised  by  notice  given,  and  it  is  unnecessary  to  make  an  actual 
entry.  ^ 

these  words  ad  affectum,  ea  intentione,  ad  solvendum,  or  other  the  like,  do 
not  make  a  condition  in  feoffments  or  grants,  unless  it  be  in  the  king's  case, 
or  in  a  last  will,  as  it  was  resolved  Pasc.  IS  El.  by  all  the  justices  of  the 
common  pleas."     Mary  Portiugtou's  Case,  10  Co.  35  a,  41  b. 

7  Doe  V.  Baker.  8  Taunt.  241 ;  Co.  Lit.  214b.  See  Liddy  v.  Kennedy,  L. 
R.  5  H.  L.  134,  151,  154. 

8  Rede  V.  Farr,  6  M.  &  S.  121 ;  Hartshorue  v.  Watson,  4  Bing.  N.  C.  ITS ; 
Moore  v.  UUooats  Mining  Co.,  [190S]  1  Ch.  575;  notes  to  Duppa  v.  Mayo,  1 
Wms.  Saund.  442. 

9  Liddy  v.  Kennedy,  L.  R.  5  H.  L.  134. 

Note  on  the  Demand  for  Re.nt  Required  as  a  Condition  Precedent  to 
Forfeiture  for  the  Non-Payment  of  Rent. — Walker,  C  J.,  in  Chadwick  v. 
Parker,  44  111.  32C:  Where  the  cause  of  forfeiture  was  default  in  tlie  pay- 
ment of  rent,  the  common-law  mode  of  forfeiture  seems  to  have  reiinired  ''a 
demand  of  the  precise  amount  of  rent  due,  neither  more  nor  less;  that  it  be 
made  upon  precisely  the  day  when  due  and  payable  by  the  terms  of  the 
lease  or  if  a  further  day  was  specified  within  which  it  might  be  paid  to  save 
the  forfeiture,  then  upon  the  last  day  of  that  time.  It  was  reipiired  to  be 
made  at  a  convenient  liour  before  simset,  upon  the  land,  at  the  most  con- 


12  CLASSIFICATION  OF  FUTURE   INTERESTS  (Part  1 

SECTION  4.— RELIEF  AGAINST   FORFEITURE 
I.    Licenser 


DUMPOR'S  CASE. 

(Court  of  Queen's  Bench,  1603.    4  Coke,  119b.) 

In  trespass  between  Dumpor  and  Symms,  upon  the  general  issue, 
the  jurors  gave  a  special  verdict  to  this  effect:  the  president  and 
scholars  of  the  College  of  Corpus  Christi  in  Oxford,  made  a  lease  for 
years  in  anno  10  Eliz.  of  the  land  now  in  question,  to  one  Bolde, 
proviso  that  the  lessee  or  his  assigns  should  not  alien  the  premises  to 
anyl^erson  or  persons,  witjiout^the  special  license  of  the  lessors.  And 
afterwards  the  lessors  by  their  deed  anno  13  Eliz.  lijcensed  the  lessee 
to  alien  or  demise  the  land,  or  any  part  of  it,  to  any  person  or  per- 
sons quibuscunque.  And  afterwards,  anno  15  Eliz.  the  lessee  assigned 
the  term  to  one  Tubbe,  \^'ho  by  his  last  will  devised  it  to  his  son,  and 
by  the  same  will  made  his  son  executor,  and  died.  The  son  entered 
generally,  and  the  testator  was  not  indebted  to  any  person,  and  after- 
wards the  son  died  intestate,  and  the  ordinary  committed  administra- 
tion to  one  who  assigned  the  term  to  the  defendant.  The  president 
and  scholars,  by  warrant  of  attorney,  entered  for  the  condition  broken, 
and  made  a  lease  to  the  plaintiff  for  twenty-one  years,  v/ho  entered 
upon  the  defendant,  who  re-entered,  upon  which  re-entry  this  action 
of  trespass  was  brought :  and  that  upon  the  lease  made  to  Bolde, 
the  yearly  rent  of  33s.  and  4d.  was  reserved,  and  upon  the  lease  to 
the  plaintiff,  the  yearly  rent  of  22s.  was  only  reserved.  And  the 
jurors  prayed  upon  all  this  matter  the  advice  and  discretion  of  the 
court,  and  upon  this  verdict  judgment  was  given  against  the  plain- 
tiff. And  in  this  case  divers  points  were  debated  and  resolved :  First, 
That  the  alienation  by  license  to  Tubbe,  had  determined  the  condi- 
tion, so  that  no  alienation  which  he  might  afterwards  make"  could 
break  the  proviso  or  give  cause  of  entry  to  the  lessors,  for  the  lessors 
could  not  dispense  with  an  alienation  for  one  tiine,  and  that  the  same 
estate  should  remain  subject  to  the  proviso  after.  And  although  the 
proviso  be,  that  the  lessee  or  his  assigns  shall  not  alien,  yet  when  the 
lessors  license  the  lessee  to  alien,  they  shall  never  defeat  by   force 

spicuous  place;  as,  if  it  were  a  dwelling-bouse,  at  tbe  frout  door,  unless 
some  otber  place  was  named'  in  tbe  lease,  wbeu  it  was  necessary  to  make  it 
at  tbat  place.  It  was  required  tbat  a  demand  sboiild  be  made  in  fact,  sbould 
be  pleaded  and  proved,  to  be  availing.  Tlie  tenant,  bowever,  bad  tbe  entire 
day  witbin  wbicb  to  make  payment."  Pages  330-331.  See,  also,  2  Taylor, 
Landlord  and  Tenant  (Otb  Ed.)  §§  493,  494 ;  McQuesten  v.  Morgan,  34  N.  H. 
400. 

For  statutory  modes  of  forfeiture  of  leases,  see  Kales,  Future  Interests,  g§ 
32-40a. 


Ch.  1)  RIGHTS   OF   ENTRY  FOR  CONDITION  BROKEN  13 

of  the  said  proviso,  the  term  which  is  absolutely  aliened  by  their  li- 
cense, inasmuch  as  the  assignee  has  the  same  term  which  was  assigned 
by  their  assent:  so  if  the  lessors  dispense  with  one  alienation,  they 
thereby  dispense  with  all  alienations  after;  for  inasmuch  as  by  force 
of  the  lessor's  license,  and  of  the  lessee's  assignment,  the  estate  and 
interest  of  Tubbe  was  absolute,  it  is  not  possible  that  his  assignee, 
who  has  his  estate  and  interest,  shall  be  subject  to  the  first  condi- 
tion: and  as  the  dispensation  of  one  alienation  is  the  dispensation  of 
all  others,  so  it  is  as  to  the  persons,  for  if  the  lessors  dispense  with 
one,  all  the  others  are  at  liberty.  And  therefore  it  was  adjudged,  Trin. 
28  Eliz.  Rot.  256  in  Com'  Banco,  inter  Leeds  and  Crompton,  that 
where  the  Lord  Stafiford  made  a  lease  to  three,  upon  condition  that 
they  or  any  of  them  should  not  alien  without  the  assent  of  the  lessor, 
and  afterwards  one  aliened  by  his  assent,  and  afterwards  the  other 
two  without  license,  and  it  was  adjudged  that  in  this  case  the  condition 
being  determined  as  to  one  person  (by  the  license  of  the  lessor) 
was  determined  in  all.  And  Popham,  Chief  Justice,  denied  the 
case  in  16  Eliz.  Eh^er,  334.  That  if  a  man  leases  land  upon  condition 
that  he  shall  not  alien  the  land  or  any  part  of  it,  without  the  assent  of 
the  lessor,  and  afterwards  he  aliens  part  with  the  assent  of  the  les- 
sor, that  he  cannot  alien  the  residue  without  the  assent  of  the  lessor: 
and  conceived,  that  is  not  law,  for  he  said  the  condition  could  not  be 
divided  or  apportioned  by  the  act  of  the  parties ;  and  in  the  same 
case,  as  to  parcel  which  was  aliened  by  the  assent  of  the  lessor,  the 
condition  is  determined;  for  although  the  lessee  aliens  any  part  of 
the  residue,  the  lessor  shall  not  enter  into  the  part  aliened  by  license, 
and  therefore  the  condition  being  determined  in  part,  is  determined 
in  all.  And,  therefore,  the  Chief  Justice  said,  he  thought  the  said 
case  was  falsely  printed,  for  he  held  clearly  that  it  was  not  law.  Nota, 
reader,  Paschas  14  Eliz.  Rot.  1015  in  Com'  Banco,  that  where  the 
lease  was  made  by  deed  indented  for  twenty-one  years  of  three  man- 
ors, A.  B.  C.  rendering  rent,  for  A.  £6,  for  B.  £S,  for  C.  £10,  to  be 
paid  in  a  place  out  of  the  land,  with  a  condition  of  re-entry  into 
all  the  three  manors,  for  default  of  payment  of  the  said  rents,  or  any 
of  them,  and  afterwards  the  lessor  by  deed  indented  and  enrolled, 
bargained  and  sold  the  reversion  of  one  house  and  forty  acres  of 
land,  parcel  of  the  manor  of  A.,  to  one  and  his  heirs,  and  after- 
wards, by  another  deed  indented  and  enrolled,  bargained  and  sold 
all  the  residue  to  another  and  his  heirs ;  and  if  the  second  bargainee 
should  enter  for  the  condition  broken  or  not,  was  the  question:  and 
it  was  adjudged,  that  he  should  not  enter  for  the  condition  broken, 
because  the  condition  being  entire,  could  not  be  apportioned  by 
the  act  of  the  parties,  but  by  the  severance  of  part  of  the  reversion, 
it  is  destroyed  in  all.  But  it  was  agreed,  that  a  condition  may  be 
apportioned  in  two  cases.  1.  By  act  in  law.  2.  By  act  and  wrong 
of  the  lessee.     By  act  in  law,  as  if  a  man  seised  of  two  acres,  the 


14  CLASSIFICATION   OF  FUTURE  INTERESTS  (Part  1 

one  in  fee,  and  the  other  in  borough  English,  has  issue  two  sons, 
and  leases  both  acres  for  life  or  years  rendering  rent  with  condi- 
tion ;  the  lessor  dies,  in  this  case  by  this  descent,  which  is  in  act  in 
the  law,  the  reversion,  rent,  and  condition  are  divided.  2.  By  act 
and  wrong  of  the  lessee,  as  if  the  lessee  makes  a  feoffment  of  part, 
or  commits  waste  in  part,  and  the  lessor  enters  for  the  forfeiture, 
or  recovers  the  place  wasted,  there,  tlie  rent  and  condition  shall  be 
apportioned,  for  none  shall  take  advantage  of  his  own  w^ong,  and 
the  lessor  shall  not  be  prejudiced  by  the  wrong  of  the  lessee:  and 
the  Lord  Dyer,  then  Chief  Justice  of  the  Common  Pleas,  in  the  same 
case,  said,  that  he  who  enters  for  a  condition  broken,  ought  to  be 
in  of  the  same  estate  which  he  had  at  the  time  of  the  condition  created, 
and  that  he  cannot  have,  when  he  has  departed  with  the  reversion 
of  part:  and  with  that  reason  agrees  Lit.  80  b.  And  vide  4  &  5 
Ph.  &  ]\Iar.  Dyer,  152,  where  a  proviso  in  an  indenture  of  lease  was, 
that  the  lessee,  his  executors  or  assigns,  should  not  alien  to  any  person 
without  license  of  the  lessor,  but  only  to  one  of  the  sons  of  the 
lessee:  the  lessee  died,  his  executor  assigned  it  over  to  one  of  his 
sons,  it  is  held  by  Stamford  and  Catlyn,  that  the  son  might  alien  to 
whom  he  pleased,  without  hcense,  for  the  condition,  as  to  the  son, 
was  determined,  which  agrees  with  the  resolution  of  the  principal 
point  in  the  case  at  bar.  2.  It  was  resolved,  that  the  Statutes  of  13 
EHz.  cap.  10  and  18  EHz.  cap.  11,  concerning  leases  made  by  deans 
and  chapters,  colleges,  and  other  ecclesiastical  persons,  are  general 
laws  whereof  the  court  ought  to  take  knowledge,  although  they  are 
not  found  by  the  jurors;  and  so  it  was  resolved  between  Claypole 
and  Carter  in  a  writ  of  error  in  the  King's  Bench. ^^ 

10  In  Brummell  v.  Macpherson,  14  Yes.  173,  the  rule  in  Dumpor's  Case  was 
applied  Miere  the  license  given  was  to__a_ssign  the  lease  to  a  particular  as^ 
sioliiiff.  Lord  Eldon  .said:  '"Though  Duuipor's  Case  always  struck  me  as 
extraordinary,  it  is  the  law  of  the  land  at  this  date." 

In  I'ennoclv  v.  Lyons,  118  Mass.  92,  the  rule  of  Duiupor's  Case  was  applied, 
though,  as  is  said  in  5  Gray's  Cases  on  Prop.  (1st  Ed.)  p.  27,  note  1,  the  pa- 
pers in  the  case  show  that  the  condition  was  against  assignment  by  the 
lessee,  and  not  against  assignment  by  the  lessee  and  his  assigns. 

A  mere  waiver,  however,  of  the  breach  of  a  condition  arising  by  reason  of 
one  subletting  is  not  equivalent  to  a  license  so  as  to  make  available  the  ap- 
plication of  the  rule  in  Dumpor's  Case.  Doe  d.  Boscawen  v.  Bliss,  4  Taunt. 
735. 

In  Doe  V.  Pritchard,  5  B.  &  Adol.  765,  at  781,  Patterson,  J.,  apiiears  to  re- 
gard the  rule  of  Dumpor's  Case  as  inapplicable  where  a  license  is  given  to 
underlet  as  distinguished  from  assigning. 

Where  the  landlord  and  the  assignee  mutually  agree  at  the  time  of  the 
assignment,  and  in  consideration  of  the  landlord's  consent  to  the  asstgrrment,- 
that  the  condition  against  any^urther  assignment  without  permission  shall  not 
be  alsrogated,  the  condition  "has'been  held  to  be  still  operative  and Tii»bn  a 
further  assignment  without  permission  a  cause  of  forfeiture  arises.  Kew  v. 
Trainor,  150  111.  150,  37  N.  E.  223  (1894). 

For  a  criticism  of  the  rule  in  Dumpor's  Case,  see  7  Am.  Law  Rev.  610. 
For  a  criticism  of  the  extension  of  the  rule  to  a  covenant  in  Eeid  v.  J.  F. 
Wiessner  Brew.  Co.,  88  Md.  234,  40  Atl.  877,  see  12  Ilarv.  Law  Rev.  272, 

23  &  24  Vict.  c.  38,  §  6:    "Where  any  actual  Waiver  of  the  Benefit  of  any 


Ch.  1)  EIGHTS  OF   ENTRY   FOR  CONDITION   BROKEN  15 

II.  Waiver 

PENNANT'S   CASE. 
(Court  of  Queen's  Bench,  1596.     3  Coke,  64a.) 

In  an  ejectione  firman,  between  Harvey,  plaintiff,  and  Oswald,  de- 
fendant, on  a  demise  made  37  EHz.  by  John  Pennant  to  the  plaintiff, 
of  certain  land  in  Ardeley,  in  the  county  of  Essex,  for  three  years, 
from  the  feast  of  All  Saints,  ann.  Z7 .  The  defendant  pleaded,  that 
the  said  John  Pennant  was  seised  of  the  said  land  in  fee,  and  anno 
35,  demised  it  to  the  defendant  for  ten  years,  yielding  the  yearly 
rentjjf  .£33  10s.  at  the  feast  of  St.  Michael,  and  tfiTe  Annunciation  of 
our  Lady;  and  that  he  was  possessed,  till  Pennant  ousted  him,  and 
demised  to  the  plaintiff,  and  he  re-entered,  &c.  The  plaintiff'  replied, 
and  confessed  the  said  lease,  but  further  said,  that  the  said  lease  was 
on  condition,  that  if  the  defendant,  his  executors_ or  adjriimstjrator's, 
at~ahy  time  witHout  the  assent  of  the  said  John  JPennant,  his  heirs 
orassigns,  did  grant,  alien,  or  assign  the  said  land  or  any  part  thereof," 
that  then  it  should  be  lawful  for  tlie  said  Pennant  and  his  heirs  to 
re-enter:  and  that  the  clcfcnd.int,  anno  35,  grcintcd  to  one  Taylor 
parcel  of  the  said  land  lor  six  years,  without  the  assent  of  Pennant,, 
for*which  he  re-entered,  and  made  the  lease  to  the  plaintiff,  prout, 
&c. 

The  defendant,  by  way  of  rejoinder,  said,  that  before  the  re-entry 
Pennant  accepted  the  rent  due  at  the  feast  of  the  Annunciation  of  our 
Lady^after  the  assignment^  J3y_jhe.  hands  of  the  defendant  Walter 
Oswald.  To  whicli  the  plaintiff,  by  way  of  surrejoinder,  said  that 
Pennant  before  the  receipt  of  the  rent  had  no_notice  of  the  said  demise 
to  Taylor,  on  which  plea  the  defendant  did  demur  in  law :  and  Trin. 
39  Eliz.  it  was  adjudged  for  the  plaintiff.  And  in  this  case  these 
points  were  resolved : 

1st.  That  the  condition  bein^  collateral,  the  breach  of  it  might  be  so 
secretly  contrived,  as  to  be  impossible  for  the  lessor  to  come  to  the 
knowledge  of  it,  and  tlierefore  notice  in  this  case  is  material  and  issu- 
able, for  otherwise  the  lessee  would  taTce  advantage  of  his  own  fraud, 
for  he  might  make  the  grant  or  demise  so  secretly,  and  so  near  the 

Covenant  or  Condition  in  any  Lease  on  the  Part  of  any  Lessor,  or  his  Heirs, 
Executors,  Administrators,  or  Assigns,  shall  be  proved  to  have  taken  place 
after  the  passing  of  this  Act  in  any  one  particular  Instance,  such  actual 
Waiver  shall  not  be  assumed  or  deemed  to  extend  to  any  Instance  or  any 
Breach  of  Covenant  or  Condition  other  than  that  to  which  such  Waiver  shall 
specially  relate,  nor  to  be  a  general  Waiver  of  the  Breach  of  any  such  Cov- 
enant or  Condition,  unless  an  Intention  to  that  Effect  shall  appear." 

Note  on  what  Amounts  to  an  Assignment  in  Breach  of  a  Condition  not 
TO  Assign:  (1)  As  to  assignments  by  an  administrator  or  an  executor:  Wil- 
liams' Executors  (9th  Ed.)  809-811.  (2)  As  to  effect  of  dissolution  of  a  part- 
nership or  assignment  by  one  partner  to  the  other,  Varley  v.  Copi>ard,  L.  R. 
7  C.  P.  505 ;    Corporation  of  Bristol  v.  Westcott,  L.  R,  12  Ch.  D.  461. 


IG  CLASSIFICATION   OF   FUTURE   INTERESTS  (Part   1 

day  on  which  the  rent  is  to  be  paid,  as  to  be  impossible  for  the  les- 
sor to  have  notice  of  it :  but  if  a  man  makes  a  lease  for  years  ren- 
dering rent,  on  condition  that  if  the  rent  be  behind,  that  it  shall  be 
lawful  for  him  to  re-enter;  in  that  case,  if  the  lessor  demands  the 
rent,  and  it  is  not  paid,  and  afterwards  he  accepts  the  rent,  (before  the 
re-entry  made)  at  a  day  after,  he  hath  dispensed  with  the  condition,^  ^ 
for  there  the  condition  being  annexed  to  the  rent,  and  he  having  made 
a  demand  for  the  rent,  he  ^vell  knew  that  the  condition  was  broke : 
but  although  in  such  a  case  he  accepts  the  rent  (due  at  the  day  for 
which"TRe"demand  was  made)  yet  he  may  re-enter,^^  for  as  well  before 
araTter  his  re-entry,  he  may  have  an  action  of  debt  for  the  rent,  on 
the  contract  between  the  lessor  and  lessee,^ ^  and  that  was  the  first 
difference  betw^een  a  collateral  condition  and  a  condition  annexed  to 
ren"t:    Vide  45  Ass.  5. 

""Tlie  second  difference  was,  that  in  case  of  a  condition  annexed  to 
rent,  if  the  lessor  distrains  for  the  same  rent  for  which  the  demand 
was  made,  he  hath  thereby  also  affirmed  the  lease,  for  his  distress  for 
the  rent  received;  for  after  the  lease  determined  he  cannot  distrain 
for  the  rent.     14  Ass.  11.    Accord. 

The  tliird  was,  that  as  well  in  case  of  a  condition  annexed  to  rent, 
as  in  case  of  a  condition  annexed  to  any  collateral  act,  _if_the^  conclu- 
sion of  tlie  condition  be,  that  then  the  lease  for  years  shall  be  void ; 
there,  no  acceptance  of  rent  due  at  any  day  after  the  breach  of  the 
condition  w^ill  make  the  void  lease  good.  And  so  a  diff'erence  between 
a  lease  which  is  ipso  facto  void  w^ithout  any  re-entry,  and  a  lease 
which  is  voidable  by  re-entry ;  for  a  lease  which  is  ipso  facto  void 
by  the  breach  of  the  condition  cannot  be  made  good  by  any  accept- 
ance afterwards.     Plow.  Com.  in  Browning  and  Beston's  Case,  133. 

The  fourtli  was,  as  the  affirmation  of  a  voidable  lease  by  parol  for 
money  (oT  other  consideration)  will  not  avail  the  lessee ;  so  the  accept- 
ance of  a  rent,  which  is  not  in  esse,  nor  due  to  him  who  accepts  it, 
will  not  bind  him ;  as  if  land  be  given  to  husband  and  wife,  and  to  the 
heirs  oT  the  body  of  the  husband,  the  husband  makes  a  lease  for  forty 
years  and  dies,  the  issue  in  tail  accepts  the  rent  in  the  life  of  the  wife, 
and  afterward  the  wife  dies ;  yet  the  issue  shall  avoid  tlie  lease ;  for 
at  the  time  of  the  acceptance  no  rent  was  in  esse,  or  due  to  him.  Vide 
32  H.  8,  Br.  Acceptance. 

11  Accord:   Goodright  v.  Davids,  Cowp.  ^.3  (1778).     So  a  right  of  entry  for 
breach  of  condition  is  waived  by  the  lessor  bringing  an  action  for  rent  ac-_ 
cruiug  subsequent  to  the^i^eacli  with  knowledge  of  its  existence.     Dendy  v. 
Xit-TIoir;  4  C.  B.  N.  S.  376. 

But  there  can  be  no  waiver  by  receipt  of  rent  nr  liy  distress  of  a  cause  of 
forfeitui-e  whore  the  forfeiture  has  been  perfi'<  tid  lu'Tore  the  rent  was  re- 
ceived  or  the  distress  levied.  .Tones  v.  Carter,  l.^i  M.  &  W.  71S;  ToTnian  v.  Purt- 
bury,  L.  K.  6  Q.  B.  245;  L.  R.  7  Q.  B.  344;  Grimwood  v.  Moss,  L.  R.  7  C.  P. 
360. 

12  Accord:  Green's  Case,  Cro.  Eliz.  3  (15S2) ;  Price  v.  Worwood,  4  H.  & 
N.  512. 

13  Hartshorne  v.  Watson,  4  Bing.  N.  C.  178. 


Ch.  1)  RIGHTS   OF   ENTRY   FOR   CONDITION   BROKEN  17 

The  fifth  was  between  a  lease  for  Hfe  and  a  lease  for  years,  for  in 
the  case  of  a  lease  for  life,  if  the  conclusion  of  a  condition  annexed  to 
the  rent  (or  otTier  collateral'  act)  be,  that  then  the  lease'  shall  be  void, 
there  (because  an  estate  of  freehold  created  by  livery,  cannot  be  de- 
temmed^before  entry)  in  such  case  acceptance  of  rent  due  at  a  day 
after  shall  bar  the  lessor  of  his  re-entry,  for  this  voidable  lease  may 
well  be  affirmed  by  acceptance  of  rent :  and  therefore,  if  a  man  makes 
a  lease  for  years,  on  condition  that  if  the  lessee  do  not  go  to  Rome, 
or  any  other  collateral  condition,  with  conclusion  that  the  lease  shall 
be  void,  in  that  case,  if  the  lessor  grants  over  the  reversion,  and 
afterwards  the  condition  is  broke,  the  grantee  shall  take  benefit 
thereof;  for  the  lease  is  void,  and  not  voidable  by  re-entry;  and 
therefore  the  grantee  who  is  a  stranger,  may  take  benefit  thereof; 
bj.it  if  the  lease  be  made  for  life  with  such  condition,  there  the  gran- 
tee shall  never  take  benefit  of  it,  for  the  estate  for  life  doth  not  deter- 
mine before  entry,  and  entry  or  re-entry  in  no  case  (by  the  common 
law)  can  be  given  to  a  stranger,  11  H.  7,  17  a,  Br.  Cond.  245;  10  E. 
3,  52,  per  Stone ;  21  H.  7,  12  a.  So  if  a  parson,  vicar,  or  prebend, 
makes  a  lease  for  years,  rendering  rent,  and  dies,  the  successor  ac- 
cepts the  rent,  it  is  nothing  worth,  for  the  lease  was  void  by  his  death, 
otherwise  is  it  of  a  lease  for  life:  but  if  a  bishop,  abbot,  prior  or 
such  like,  makes  a  lease  for  years  and  dies,  if  the  successor  accepts 
the  rent,  he  shall  never  avoid  the  lease,  for  the  lease  was  only  void- 
able, 11  E.  3,  Abbot,  9;  8  H.  5,  19;  37  H.  6b;  24  H.  8,  Br.  Leases, 
19;   F.  N.  B.  50  C. 

But  note,  reader,  I  conceive  that  in  the  case  of  a  lease  for  life,  if  the 
lessor  accepts  the  same  rent  which  was  demanded,  he  hath  affirmed 
the  lease,^for_he  cannot_receiye  ijt  as  due  on  any  contract,  as  in  the  case 
of'a  Tease  for  years,  but  he  ought  to  receive  it  as  his  rent,  and  then 
he^oTlr'affirm  the  lease  to  continue ;  f Qr_vvhen  he  accepted  the  rent, 
he  could  not  have  an  action  of  debt  for  it,  but  his  remedy  then  was 
by  assize,  if  he  had  seisin,  or  by  distress,  ^^nd  therefore  I  conceive 
in  such  case,^tlie  acceptance  of  the  rent  shall  bar  him  oniTs^re-entryT" 
ancTit  appears  by  Littleton,  cap.  Conditions,  fol.  79  a,  that  in  such  case, 
if  the  lessor  brings  an  assize  for  the  rent,  he  relinquishes,  and  waives 
the  benefit  of  his  re-entry,  although  it  be  for  the  rent  due  at  the  same 
day ;  but  if  he  re-enters  first,  then  he  mav  have  an  action  of  debt  for 
the  rent  behind,  17  E.  3,  IZ;  18  E.  3,  10;  30  E.  3,  7;  38  E.  3,  10. 
And  afterwards  Mich.  39  and  40  Eliz.  in  the  Common  Pleas,  which 
plea  began  Hil.  38  Eliz.  Rot.  1302,  in  trespass  between  March  and 
Curtis,  for  land  in  Essex,  the  like  judgment  was  given  by  Anderson, 
Chief  Justice,  there,  Walmsley,  Justice,  and  the  whole  court,  where  a 
lease  for  years  was  made,  rendering  rent,  and  with  condition  that  if 
the  lessee  should  assign  his  term,  that  the  lessor  might  re-enter,  and 
the  lessee  assigned  his  term,  that  although  tlie  lessor  had  accepted 
4  Kales  Fbop. — 2 


18  CLASSIFICATION   OF  FUTURE   INTERESTS  (Part  1 

the  rent  by  the  hands  of  the  lessee,  yet,  forasmuch  as  the  lessor  had 
not  notice  of  the  assignment,  the  acceptance  of  the  rent  did  not  con- 
clude him  of  his  entry;  so  this  point  hath  been  adjudged  by  both 
courts.  See  for  the  said  differences  (which  lie  obscurely  in  our  books) 
45  Ass.  5,  the  Case  of  Waste,  22  H.  6,  57;  6  H.  7,  3  b;  F.  N.  B.  120, 
122;  Plow.  Com.  Browning  and  Beston's  Case,  133,  545;  14  Ass.  11; 
40  E.  3,  Entry  Congeable,  41 ;  11  H.  7,  17:  10  E.  3.  52;  21  H.  7,  12; 
21  H.  6,  24;  '39  H.  6,  27;  26  H.  8. 

And  in  these  two  cases  many  good  cases  and  differences  were  taken, 
when  acceptance  of  rent  (or  other  things)  shall  bar  him  who  accepts 
it  of  the  arrearages  of  the  rent,  of  re-entry,  of  action,  or  of  execu- 
tion, and  the  reason  of  the  old  books  briefly  reported,  and  in  an  ob- 
scure manner,  well  explained.  If  he  who  hath  a  rent-service  or  a 
rent-charge,  accept  the  rent  due  at  the  last  day,  and  thereof  makes 
an  acquittance,  all  the  arrearages  due  before  are  thereby  discharged : 
and  so  was  it  adjudged  between  Hopkins  and  Morton  in  the  Common 
Pleas,  Hil.  Rot.  950,  vide  10  Eliz.  Dyer,  271,  but  there  the  case  is  left 
at  large;  and  therewith  agrees  11  H.  4,  24,  and  1  H.  5,  7  b.  But  note, 
it  appears  by  the  said  record  of  10  El.  that  the  bar  to  the  avowry 
ought  to  be  in  such  case,  with  conclusion  of  judgment,  if  against  this 
deed  of  acquittance  he  ought  to  mal^e  avowry ;  so  that  it  appears  that 
the  acquittance  is  tlie  cause  of  the  bar  of  estoppel  in  such  case.  For  it 
appears  by  8  Ass.  pi.  ult. ;  9  E.  3,  9;  29  E.  3,  34,  that  if  a  man  makes 
a  lease  for  life  rendering  rent,  or  if  there  be  lord  and  tenant  by  fealty 
and  rent,  and  the  rent  is  behind  for  two  years;  and  afterwards  the 
lessor,  or  the  lord,  disseises  the  ter-tenant,  and  afterwards  the  tenant 
recovers  against  him  in  assize,  and  the  rent,  which  incurred  during 
the  disseisin  is  recouped  in  damages,  yet  the  lord  or  lessor  shall  recover 
in  the  assize,  the  arrearages  before  the  disseisin;  and  the  bar  of  the 
latter  years  is  no  bar  of  the  arrearages  before.  Vide  39  H.  6;  Bar. 
79,  where  the  principal  case  of  annuity  may  be  good  law,  either  be- 
cause there  the  defendant  pleaded  the  acquittance  for  the  last  day, 
and  demanded  judgment  of  action,  where  he  ought  to  have  relied  upon 
the  acquittance.  Or  because,  in  the  case  of  annuity,  he  is  not  bound 
to  pay  the  annuity  without  acquittance ;  but  in  the  case  of  rent-service, 
or  rent-charge,  he  who  receives  it  is  not  compellable  to  make  an  ac- 
quittance, but  the  making  thereof  is  his  voluntary  act,  to  which  the  law 
doth  not  compel  him. 

If  there  be  lord  and  tenant,  and  the  rent  is  behind,  and  the  tenant 
makes  a  feoffment  in  fee,  if  the  lord  accepts  the  rent  or  service  of  the 
feoffee,  he  shall  lose  the  arrearages  in  the  time  of  the  feoffor,  although 
he  makes  no  acquittance;  for  after  such  acceptance  he  shall  not  avow 
on  the  feoffor  at  all,  nor  on  the  feoffee,  but  for  the  services  which  in- 
curred in  his  time,  as  appears  in  4  E.  3,  22 ;  7  E.  3,  8 ;  7  E.  4,  27 ; 
29  H.  8,  Br.  Avowry,  111.  But  in  such  case,  if  the  feoffor  dies,  al- 
though the  lord  accepts  the  rent  or  service  by  the  hand  of  the  feoft'ee. 


Ch.  1)  RIGHTS   OF   ENTRY  FOR   CONDITION  BROKEN  19 

he  shall  not  lose  the  arrearages,  for  now  the  lord  cannot  avow  on 
other,  but  only  on  the  feoffee :  and  that,  to  which  the  law  compels  a 
man,  shall  not  prejudice  him. 

So,  and  for  the  same  reason,  if  there  be  lord,  mesne,  and  tenant, 
and  the  rent  due  by  the  mesne  is  behind,  and  afterwards  the  tenant 
doth  forejudge  the  mesne,  and  the  lord  receives  the  services  of  the 
mesne,  which  now  issue  immediately  out  of  the  tenancy,  yet  he  shall  not 
be  barred  of  the  arrearages  which  issue  out  of  the  mesnalty:  so,  if 
the  rent  be  behind,  and  the  tenant  dies,  the  acceptance  of  the  services 
by  the  hands  of  the  heir  shall  not  bar  him  of  the  arrearages ;  for  in 
these  cases,  although  the  person  be  altered,  yet  the  lord  doth  accept 
the  rent  and  services  of  him  who  only  ought  to  do  them ;  and  all  this 
appears  in  4  E.  3,  22;  7  E.  3,  4;  7  E.  4,  27;  29  H.  8,  Avowry  Br. 
111.  But  acceptance  of  rent  or  services  by  the  hands  of  the  feoffee 
shall  not  bar  the  lord  of  the  relief  before  due,  for  relief  is  no 
service,  but  a  fruit  and  approvement  of  serv^ices ;  for  if  it  were  part 
of  the  services,  then  an  action  of  debt  would  not  lie  for  it  so  long  as 
the  rent  continues,  but  it  is  as  a  blossom  of  fruit  fallen  from  the  tree ; 
and  for  relief,  it  is  not  necessary  to  avow  on  any  person  certain ;  and 
the  book  in  4  E.  3,  22,  is  to  be  intended,  that  the  father  made  a  feoff- 
ment in  fee  by  collusion  and  died :  and  there  it  is  held,  that  if  the  lord 
had  accepted  the  services  by  the  hands  of  the  feoffee  in  the  life  of 
the  father,  he  should  lose  his  relief. 

But  note,  reader,  relief  was  not  taken  within  the  equity  of  tlie 
Statute  of  Marlebridge,  as  it  is  adjudged  in  17  [27]  E.  3,  63 ;  but  now 
it  is  remedied  by  the  Statute  of  32  and  34  H.  8  of  Wills.  But  in  the 
case  before,  the  lord  (before  acceptance  of  the  rent  or  service  by  the 
hands  of  the  feoffee)  might  have  avowed  on  the  feoffee  for  all  the  ar- 
rearages incurred,  as  wt;ll  in  the  time  of  the  feoffor,  as  in  the  time  of 
the  feoft'ee,  as  it  is  in  7  H.  4,  14;  19  E.  2,  Avowry,  222.  And  by 
what  hath  been  said  it  appears,  that  the  acceptance  of  homage  or 
any  other  service  of  the  heir,  shall  not  bar  the  lord  of  relief.  Vid. 
temp.  E.  1,  Relief,  13;    15  E.  3  lb.  5;   16  E.  3  lb.  10;   3  E.  2  Avow. 

]^C)Q  14       *       *       * 

1*  Balance  of  case  omitted. 


20  CLASSIFICATION   OF  FUTURE  INTERESTS  (Part  1 

DAVENPORT  v.  THE  QUEEN. 

(Privy  Council,  1877.    3  App.  Cas.  115.) 

Appeal  ^^  from  an  order  of  the  Supreme  Court  of  Queensland,  dis- 
charging a  rule  to  set  aside  a  verdict  found  for  her  Majesty,  and  to  en- 
ter a  nonsuit  or  a  verdict  for  Davenport,  or  for  a  new  trial  in  an  ac- 
tion of  ejectment  brought  in  the  name  of  her  Majesty,  on  the  fiat  of 
her  Attorney-General  for  Queensland,  to  recover  land  in  the  Darling 
Downs  District  in  Queensland. 

In  1868  her  Majesty  leased  a  tract  of  land  to  one  Meyer  for  a  term 
of  eight  years,  from  September  23,  1867.  The  rent  was  to  be  paid 
annually  in  advance,  and  on  payment  of  the  last  year's  rent  the  les- 
see was  entitled  to  a  deed  of  the  land  in  fee.  Meyer  transferred  the 
lease  to  Davenport,  the  appellant,  in  June,  1869,  and  Davenport  to 
D'Abedyll  in  1870.  Davenport  was  in  possession  as  tenant  to  D'Abedyll 
when  this  suit  was  brought. 

]\Ieyer  failed  to  cultivate  or  improve  the  demised  premises  within  a 
year  from  the  date  of  the  lease.  The  first  question  which  arose  was 
whether  this  failure,  under  the  provisions  of  the  lease,  made  the  lease 
either  voidable  at  the  option  of  the  Crown,  or  absolutely  void,  and  if 
so,  which.  The  Privy  Council  was  of  opinion  that  the  lease  was  void- 
able at  the  option  of  the  Crown.    This  part  of  the  case  is  omitted. 

Sir  Montague;  E.  Smith.  *  *  *  The  principal  facts  are  undis- 
puted. The  rent  payable  on  the  1st  of  January,  1869,  was  duly  paid 
into  the  colonial  treasury,  but  there  being  no  evidence  that  the  Crown 
was  then  made  aware  of  the  non-improvement,  nothing  turns  upon  this 
payment.  However,  on  the  1st  of  February  in  that  year  the  surveyor 
of  the  Darling  Downs  district,  who  had  been  directed  by  the  Surveyor- 
General  to  examine  the  allotments  which  had  been  leased,  made  a  re- 
port in  which  he  stated  that  no  cultivation  or  improvement  had  been 
made,  among  others,  in  the  allotment  in  question.  A  copy  of  this  re- 
port was  sent  in  the  month  of  June  following  by  the  Surveyor-General 
to  Mr.  Taylor,  the  Minister  for  Lands  of  the  colony.  Mr.  Taylor, 
who  was  examined  at  the  trial,  deposed  that  having  made  himself  ac- 
quainted with  the  report,  he  laid  it  before  his  colleagues  in  the  ministry, 
and  that  the  result  of  their  deliberations  was  a  determination  not  to 
proceed  for  the  forfeiture  of  the  allotments,  but  to  allow  the  future 
rents  to  be  paid.  Mr.  Taylor  says  he  thereupon  told  the  Surveyor-Gen- 
eral to  take  no  action  on  this  report,  adding,  "we  could  not  afford  it." 

Accordingly,  Air.  D'Abedyll  paid  the  subsequent  yearly  rents  in  ad- 
vance as  they  became  due,  viz.,  on  the  1st  of  January  in  the  years  1870, 
1871,  and  1872;  and  on  the  31st  of  May,  1873,  he  paid  in  advance  the 
whole  of  the  remaining  rent  accruing  under  the  lease.  He  paid  at  the 
same  time  the  fees  chargeable  on  the  issue  of  deeds  of  grant. 

IS  Only  part  of  tlie  case  is  given,  and  tlie  following  short  statement  is  sub- 
stituted for  that  in  the  report. 


Ch.  1)  RIGHTS  OF   ENTRY   FOR   CONDITION   BROKEN  21 

It  is  not  denied  that  the  Minister  for  Lands  was  made  acquainted 
with  these  payments,  nor  that  they  were  paid  "as  rent ;"  and  it  cannot 
be  doubted  that  the  minister  knew  they  were  so  paid. 

Two  receipts  given  by  the  local  land  agent  were  produced,  in  which 
the  payments  are  described  as  "rents." 

On  the  23d  of  December,  1869,  a  notice  headed  "Payment  of  Rents 
under  the  Leasing  Act,  1866,"  was  published  in  the  Gazette.  After 
giving  notice  to  lessees  living  at  a  distance  from  Brisbane  that  the  local 
land  agents  had  been  instructed  to  receive  "the  rents,"  it  contains  the 
following  note : 

"The  accompanying  schedule  contains  all  selections  made  under  the 
Leasing  Act  of  1866,  excepting  those  which  have  been  forfeited  for 
non-payment  of  rent.  Rents  which  may  be  received  upon  such  of  these 
selections  as  may  have  been  forfeited  by  operation  of  law,  will  be 
deemed  to  have  been  received  conditionally,  and  without  prejudice  to 
the  rigHTof  the  Government  to  deal  witli  the  same  according  to  the  pro- 
visions contained  in  the  Act  in  that  behalf." 

The  schedule  contained  the  name  of  the  appellant  (who  was  then 
the  assignee  of  the  lease),  the  allotment  No.  196,  and  the  amount  due 
was  described  as  "third  year's  rent,  i40." 

Similar  notices  were  published  in  the  Gazette  on  the  18th  of  Novem- 
ber, 1870,  and  the  31st  of  October,  1871. 

After  the  rent  for  the  whole  term  of  eight  years  had  been  fully  paid, 
and  before  the  term  of  the  lease  had  expired,  and  without  an  offer  to 
refund  any  part  of  the  money,  this  ejectment  was  commenced. 

The  writ  bears  date  the  16th  of  September,  1874,  and  alleges  the  ti- 
tle of  the  Crown  to  have  accrued  on  the  3rd  of  May,  1869,  treating 
the  lessee  and  his  transferees  as  trespassers  from  that  date. 

Upon  the  trial  of  the  action,  in  which  the  above  facts  were  admitted 
or  proved,  the  judge  directed  the  verdict  to  be  entered  for  the  Crown; 
one  question  only,  which  will  be  hereafter  adverted  to,  having  been  left 
to  the  jury.  The  principal  points  were  reserved  for  the  consideration 
of  the  court,  which,  by  the  judgment  under  appeal,  sustained  the  ver- 
dict.    *     *     * 

If  then  the  Crown  could  treat  the  lease  as  voidable,  the  further  ques- 
tion to  be  considered  is,  Efas  it  elected  so  to  treat  it  and  waived  the  for- 
feiture ? 

On  this  part  of  the  case  their  Lordships  have  felt  no  difficulty.  The 
evidence  of  waiver  seems  to  them  to  be  clear  and  overwhelming.  Not 
only  was  the  rent  for  three  successive  years  accepted  in  advance,  but 
in  1873  the  whole  of  the  remaining  rent  accruing  under  the  lease  was 
paid  up  in  full.  And  these  rents  were  received  by  the  officers  of  the 
Government,  as  appears  by  the  evidence  before  set  out,  not  only  with 
full  knowledge  of  the  breach  of  the  condition,  but  in  consequence  of 
the  decision  of  the  ministers  of  the  Crown  in  the  colony,  come  to  after 
mature  deliberation,  that  the  Government  of  the  colony  wanted  the 
money,  and  could  not  afford  to  insist  upon  the  forfeiture. 


22  CLASSIFICATION  OF  FUTURE  INTERESTS  (Part  1 

It  was  sought  to  obviate  the  effect  of  these  receipts  by  referring  to 
the  passage  contained  in  the  "notification  of  rents  due,"  set  out  above. 
This  notification  appeared  in  the  Gazette  in  three  successive  years,  the 
last  year  being  as  far  as  appears  1871.  After  that  year  the  publication 
was  apparently  abandoned.  It  is  therefore  very  doubtful  whether  this 
notification  can  in  any  way  affect  the  acceptance  in  the  year  1873  of 
all  the  rent  then  remaining  due. 

But,  supposing  this  notice  is  to  be  regarded  as  pointing  to  all  future 
rents,  their  Lordships  think  it  would  not  prevent  the  acceptance  of 
these  rents  from  operating  as  a  waiver.  The  notification  itself  de- 
scribes the  payments  as  "rent,"  and  their  Lordships  have  no  difficulty, 
upon  the  evidence  before  adverted  to,  in  coming  to  the  conclusion  of 
fact,  that  the  money  was  not  only  paid,  but  received  as  "rent." 

A  question  of  this  kind  received  great  consideration  in  the  House  of 
Lords  in  Croft  v.  Lumley,  6  H.  L.  C.  672.  In  that  case  the  facts  were 
much  more  favorable  to  the  contention  that  there  was  no  waiver  than 
in  the  present.  Thejenant  tendered  and  paid  the  rent  due  on  the  lease 
after  the  landlord  had  declared  that  he  would  not  receive  ifa's  rent  un- 
der an  existing  lease,  but  merely  as  compensation  for  the  occupation  of 
thelan^.  The  opinion  of  all  the  judges,  except  Mr.  Justice  Crompton, 
was  that  the  receipt  of  the  money  under  these  circumstances  operated 
as  a  waiver.'  Tn  the  present  case  the  rent,  as  already  stated,  was  re- 
ceived as  rent,  with,  at  most,  a  protest  that  it  was  received  conditionally, 
and  without  prejudice  to  the  right  to  deal  with  the  land  as  forfeited. 
Lord  Wensleydale,  who  was  disposed  to  agree  with  Mr.  Justice  Cromp- 
ton in  his  conclusion  of  fact  in  the  particular  case,  appeared  to  have  no 
doubt  that  when  money  is  in  fact  received  as  rent,  the  waiver  is  com- 
plete. A  very  learned  judge,  Mr.  Justice  Williams,  gave  his  opinion 
in  the  following  terms :  "It  was  established  as  early  as  Pennant's  Case, 
3  Rep.  64  a,  that  if  a  lessor,  after  notice  of  a  forfeiture  of  the  lease, 
accepts  rent  which  accrues  after,  this  is  an  act  which  amounts  to  an 
affifmance  of  the  lease  and  a  dispensation  of  the  forfeiture.  In  the 
present  case  the  facts,  I  think,  amount  to  this :  that  the  lessor  accepted 
the  rent,  but  accompanied  the  receipt  with  a  protest  that  he  did  not  ac- 
cept it  as  rent,  and  did  not  intend  to  waive  any  forfeiture.  But  I  am 
of  opinion  the  protest  was  altogether  inoperative,  as  he  had  no  right 
at  all  to  take  the  money  unless  he  took  it  as  rent ;  he  cannot,  I  think, 
be  allowed  to  say  that  he  wrongfully  took  it  on  some  other  account,  and 
if  he  took  it  as  rent,  the  legal  consequences  of  such  an  act  must  follow, 
however  much  he  may  repudiate  them." 

Without  finding  it  necessary  to  invoke  this  opinion  to  its  full  extent 
in  the  present  case,  it  is  enough  for  their  Lordships  to  say  that  where 
money  is  paid  and  received  as  rent  under  a  lease,  a  mere  protest  that 
it  is  accepted  conditionally  and  without  prejudice  to  the  right  to  insist 
upon  a  prior  forfeiture,  cannot  countervail  the  fact  of  such  receipt. 

The  finding  of  the  jury  that  there  was  no  waiver  appears  from  the 
notes  of  the  learned  judge  who  tried  the  cause  to  have  been  founded 


Ch.  1)  RIGHTS   OF   ENTRY   FOR   CONDITION   BROKET"!  23 

on  his  direction,  "that  the  intention  of  the  party  receiving  the  rent,  and 
not  of  the  party  paying-  it,  must  be  looked  at  in  considering  the  ques- 
tion of  waiver,  and  that  unless  the  jury  were  of  opinion  that  the  rents 
were  received  after  the  23d  of  May,  1869,  unconditionally  and  unre- 
servedly, they  should  find  no  waiver."  In  their  Lordships'  view  of 
the  law  which  has  just  been  stated,  this  direction  is  erroneous.  They 
do  not,  however,  deem  it  necessary  to  send  down  the  case  for  a  new 
trial,  because  the  question  of  waiver  really  depends  on  undisputed  facts, 
from  which  the  proper  legal  inference  to  be  drawn  is,  in  their  opinion, 
clear.  Even  if  the  evidence  of  the  receipt  of  the  money  as  rent  had 
been  less  convincing  than  they  have  found  it  to  be,  they  would  have 
hesitated  to  come  to  the  conclusion  that  the  ministers  of  the  Crown 
took  this  money  wrongfully,  and  without  any  color  of  right,  as  they 
would  have  done  if  it  had  not  been  accepted  as  rent. 

Upon  a  review  of  the  whole  case,  therefore,  they  are  of  opinion  tliat 
the  verdict  ought  to  be  entered  for  the  defendant. 

In  the  result,  their  Lordships  will  humbly  advise  her  Majesty  to  re- 
verse the  judgment  of  the  Supreme  Court,  discharging  the  rule  nisi  of 
the  11th  of  December,  1874,  and,  instead  thereof,  to  direct  that  such 
rule  be  made  absolute  to  set  aside  the  verdict  found  for  the  plaintiflF, 
and  to  enter  the  verdict  for  the  defendant,  with  costs. 

The  defendant  (appellant)  will  also  have  the  costs  of  this  appeal. 


DOE  d.  AMBLER  v.  WOODBRIDGE. 
(Court  of  King's  Bench,  1829.    9  Barn.  &  C.  376.) 

Ejectment  for  a  house  in  the  city  of  London.  Plea,  Not  guilty.  At 
the  trial  before  Lord  Tenterden,  C.  J.,  at  the  London  sittings  after 
Hilary  Term,  it  appeared  that  the  lessor  of  the  plaintiff  was  owner  of 
the  house  in  question,  which  the  defendant  occupied  under  a  lease,  con- 
taining a  covenant  that  the  tenant  should  not  alter,  convert,  or  use  the 
rooms  thereof  then  used  as  bed-rooms,  or  either  of  them,  into  or  for 
any  other  use  or  purpose  than  bed  or  sitting  rooms,  for  the  occupa- 
tion of  himself,  his  executors,  &:c.,  or  his  or  their  family,  without  the 
license  of  the  lessor  in  writing ;  and  the  lease  contained  a  clause  of  for- 
feiture for  breach  of  any  covenant.  The  defendant  had  let  part  of 
the  house  to  a  lodger,  who  occupied  up  to  the  time  of  the  trial  the 
rooms  specified  in  the  covenant  above  set  out ;  but  the  lessor  had,  after 
he  knfew  of  such  occupation,  received  rent  under  the  lease :  and  the 
only  question  was.  Whether  by  so  doing  he  had  waived  the  forfeiture? 
Lord  Tenterden,  C.  J.,  thought  there  was  a^ continuing  breach  as  long 
as  the  rooms  were  occupied  contrary  to  the  covenant,  and  directed  the 
jury  to  find  for  the  plaintiff,  but  gave  the  defendant  leave  to  move  to 
enter  a  nonsuit. 

Denman  now  moved  accordingly,  and  contended,  that  the  receipt  of 
rent  by  the  landlord  was  a  waiver  of  the  forfeiture.    In  Doe  v.  Allen, 


24  CLASSIFICATION  OF   FUTURE   INTERESTS  (Part  1 

3  Taunt.  78,  ejectment  was  brought  for  a  forfeiture  incurred  by  carry- 
ing on  a  trade  prohibited  by  the  lease.  The  defendant  could  not  prove 
any  payment  of  rent  after  the  business  was  commenced,  but  it  appears 
to  have  been  admitted  by  the  court  that  such  proof  would  have  been  an 
answer  to  the  action.  In  Doe  v.  Banks,  4  B.  &  A.  401,  the  payment 
of  rent  was  held  not  to  be  a  waiver,  because  the  breach  of  covenant, 
which  consisted  in  ceasing  to  work  a  coal-mine  for  a  certain  period, 
was  not  complete  at  the  tinie  of  the  payment. 

Per  Curiam.  The  conversioii  of  a  house  into  a  shop,  is  a  breach 
complete  at  once,  and  the  forfeiture  thereby  incurred  is  waived  by  a 
subsequent  acceptance  of  rent.  But  this  covenant  is,  that  the  rooms 
shall  not  be  used^r  certain  purposes.  There  was,  therefore,  a  new 
breach  of  covenant  every  day  during  the  time  that  they  were  so  used, 
of  which  the  landlord  might  take  advantage ;  and  the  verdict,  which 
proceeded  on  the  particular  words  of  this  covenant,  was  right. 

Rule  refused. ^^ 


16  Accord:  Farwell  v.  Easton.  63  Mo.  446;  Gluck  v.  Elkan.  36  Minn.  SO, 
30  N.  W.  446  (keei>  a  stairway  jopen);  Bleecker  v.  Smith,  13  Weud.  (N.  Y.) 
530  (to  plant  ajQple  trees  and  I'eplace  those  destroyed);  Jackson  v.  Allen,  3 
Cow.  (X~TT~220  (give  unobstructed  enjoyment  of  a  way) ;  Doe  v.  Gladwin, 
6  Ad.  &  E.  (N.  S.)  9oo  (51  Eng.  Com.  Law  Rep.)  ("insure  and  continue  in- 
sured") ;   Doe  V.  Peck,  1  B.  &  Ad.  42S  ("insure  and  keei)  insured").       -- — ^■' 

TiTBonniwell  v.  Madison,  107  Iowa,  85,  89,  77  N.  W.  530,  the  Court  said, 
by  Deemer,  C.  J.:  "Moreover,  while  it  is  a  general  rule  that  no  demand  for 
I)erformance  [of  covenant  to  maintain  a  fence]  is  necessary,  yet  where,  as  in 
this  case,  there  is  an  evident  waiver  of  performance  by  defendant's  immedi- 
ate grantor,  it  seems  to  us  that  demand  is  necessary,  before  the  right  of 
re-entr\'  exists.  See  Merrifield  v.  Cobleigh,  4  Cush.  (Mass.)  178 ;  Bradstreet 
V.  Clark,  21  Pick.  (Mass.)  389;  Donnelly  v.  Eastes,  94  Wis.  390,  69  N.  W. 
157;  Cory  v.  Corv,  86  Ind.  567;  Royal  v.  Aultman  &  Taylor  Co.,  116  Ind. 
424,  19  N.  E.  202,  2  L.  R.  A.  526;  Hurto  v.  Grant  [90  Iowa,  414,  57  N.  W. 
899]  supra." 

In  Crocker  v.  Old  South  Society,  106  Slass.  489,  in  Boston,  the  condition  of 
forfeiture  of  a  pew,  if  the  owner  left  the  meeting  house  without  first  offering 
the  pew  for  a  certain  price,  was  held  to  be  a  continuing  covenant,  so  that  a 
waiver  of  a  breach  occurring  at  one  time  did  not  pi'eveut  the  condition  being 
subsequently  broken  and  a  forfeiture  enforcod. 

In  McGlynn  v.  Moore,  25  Cal.  384,  a  covenant  to  build  within  a  given  time 
on  the  (Ietfllged"T?reihises  was  held  not  jo  be  a  continuinLr  covciumt.  ~ 

On  the  Extinguishment  of  the  Right  of  Entry  for  ConuYtion  Broken 
BY  Limitation. — See  Glb.son  v.  Doeg.  2  Hurl.  &  U.  615  (1857) ;  Hooper  v.  Cum- 
mings,  45  Me.  359;  Scovill  v.  McMahon.  62  Conn.  378,  26  Atl.  479,  21  L.  R. 
A.  58,  36  Am.  St.  Rep.  350.  See  also  McCue  v.  Barrett,  99  Minn.  352,  109 
N.  W.  594. 

Note  on  Relief  from  Forfeitube  in  Equity. — Act  4  Geo.  II,  c.  28,  §  2, 
provided  that  a  ianaiora  in  pla(^e  6T  BiSllilllg'  an-^entry  for  forfeiture  for  non- 
payment of  rent  might  serve  a  declaration  in  ejectment  and  that  six  months 
after  execution  executed  in  the  ejectment  by  the  landlord  against  the  tenant, 
the  tenant  should  be  barred  and  foreclosed  from  all  relief  or  remedy  in  eq- 
uity against  the  forfeiture.  Section  3  provided  the  terms  upon  which  relief 
in  equity  from  the  forfeiture  for  non-payment  of  rent  would  be  given  within 
the  six  months.  Section  4  provided  for  the  termination  of  the  ejectment  suit 
by  the  tender  of  rent  or  its  payment  into  court  and  that  if  relief  were  given 
to  the  tenant  in  e<iuity,  said  tenant  should  enjoy  the  demised  premises  ac- 
cording to  the  lease  without  any  new  lease  being  made  to  said  tenant. 

For  a  similar  statute  in  New  York,  see  the  provisions  of  the  Code  of  Civil 


Ch.  1)  RIGHTS   OF   ENTRY  FOR   CONDITION   BROKEN  25 

Procedure,  §§  1504-1509,  quoted  Horton  v.  New  York  Cent.  &  H.  R.  Ck).,  12 
Abb.  N.  C.  (N.  y.)  31-33. 

It  seeuis  to  have  been  assumed  that  the  act  of  4  Geo.  II,  supra,  merely 
regulated  the  manner  in  which  equity  was  to  exercise  jurisdiction  and  was 
not  in  the  least  necessary  to  confer  that  jurisdiction:  Ilill  v.  Barclay.  18 
Ves.  56,  GO,  per  I^rd  Chancellor  Eldon ;  Sanders  v.  Pope,  12  Ves.  282,  2S9, 
per  Lord  Chancellor  Erskiue.  A  similar  view  was  taken  of  the  New  York 
statute  referred  to  supra.  Horton  v.  N.  Y.  Cent.,  etc.,  R.  R.  Co.,  12  Abb.  N. 
C.  (N.  Y.)  30,  40. 

In  various  states  of  the  United  States,  where  no  statute  is  in  force,  the  ju- 
risdiction of  equity  to  relieve  against  forfeiture  for  non-payment  of  rent  has 
"been  asserted.  Abrams  v.  Watson,  59  Ala.  524 ;  Little  Rock  Granite  Co.  v. 
Shall,  59  Ark.  405,  27  S.  W.  562 ;  Wilson  v.  Jones  &  Tapp,  64  Ky.  (1  Bush) 
173;  Lilley  v.  Fiftv  Associates,  101  Mass.  432;  Sunday  Lake  Mining  Co.  v. 
Wakefield,  72  Wis.  204,  39  N.  W.  136 ;  Merrill  v.  Trimmer,  2  Pa.  Co.  Ct.  Rep. 
49.  The  same  rule  has  been  followed  where  the  forfeiture  was  for  non-pay- 
ment of  taxes  and  assessments.    Giles  v.  Austin,  62  N.  Y.  486. 

In  Sanders  v.  Pope,  12  Ves.  282,  it  was  held  that  equity  would  relieve 
against  a  forfeiture  for  the  breach  of  a  condition  in  not  laying  out  a  specific 
sum  in  repairs,  but  this  was  doubted  by  Lord  Eldon  in  Hill  v.  Barclay,  16 
Ves.  401,  and  18  A'es.  56,  where  it  was  held  that  equity  would  not  relieve 
against  a  forfeiture  occurring  because  of  the  breach  of  a  condition  to  keep 
premises  in  repair. 

In  Hagar,  Adm'r,  v.  Buck,  44  Vt.  285,  8  Am.  Rep.  368,  however,  equity  did 
relieve  against  a  forfeiture  for  the  breach  of  a  condition  to  keep  the  demised 
premises  in  repair,  where  the  breach  had  l)een  waived  up  to  a  time  immedi- 
ately prior  to  the  re-entry  and  the  tenant  had  an  option  to  purchase  the  fee 
for  $500  and  tendered  the  sum  and  the  rent  due. 

Equity  will  not  in  general  relieve  against  a  forfeiture  founded  upon  the 
breach:  of  a  covenant  not  to  assign  or  sublet.  Wafer  v.  Mocato,  9  Modern, 
llSTTTavies  V.  3Toretou,  2  Cas.  in  Chancery,  127;  Lovat  v.  Lord  Ranelagh, 
3  Ves.  &  B.  24,  31;  or  to  insure:  Rolfe  v.  Harris.  2  Price,  206;  Reynolds 
V.  Pitt,  19  Ves.  134;  White  v.  Warner,  2  Meriv.  459;  Green  v.  Bridges,  4 
Sim.  96.  \Miere,  however,  the  failure  to  insure  was  due  to  accident  or  mis- 
take, and  no  actual  damage  had  occurred  to  the  lessor,  relief  was  given  in 
equity.    Mactier  v.  Osborn,  146  Mass.  399,  15  N.  E.  641,  4  Am.  St.  Rep.  323. 


26  CLASSIFICATION  OF  FUTURE   IXTERESTg  (Part   1 

CHAPTER  II 
ESCHEAT  AND  POSSIBILITIES  OF  REVERTER 


CO.  LIT.  13b :  And  it  is  to  be  well  observed  that  our  author  saith,  if 
he  hath  no  heir,  &c.,  the  land  shall  escheat.  In  which  words  is  impliea 
a  diversity  (as  to  the~e"scheat)  betweeiT  f ee  simple  absolute,  which  a 
natural  body  hath,  and  fee  simple  absolute,  which  a  bod\"  poTTHc'iTr 
incorporate  hath  For  if  land  holden  of  I.  S.  be  given  to  an  abbot  and 
his  successors,  in  this  case  if  the  abbot  and  all  the  convent  die,  so  that 
the  body  politic  is  dissolved,  the  donor  shall  have  against  this  land,  and 
not  the  lord  by  escheat.^  And  so  if  land  be  given  in  fee  simple  to  a 
dean  and  chapter,  or  to  a  mayor  and  commonalty,  and  to  their  suc- 
cessors, and  after  t:rirVM2ndy_j-in1ii-ir  nr  incorporate  is  dissolved,  the 
donor  shall  have  agam  the  land,  and  not  the  lord  by  escheat.  And 
the^reason  and  the  cause  of  this  diversity  is,  for  that  in  the  case  of 
a  body  politic  or  incorporate  the  fee  simple  is  vested  in  their  politic 
or  incorporate  capacity  created  by  the  policy  of  man,  and  therefore 
the  law  doth  annex  the  condition  in  law  to  every  such  gift  and  grant, 
that  if  such  body  politic  or  incorporate  be  dissolved,  that  the  donor~or 
grantor  shall  re-enter,  tor  that  the  cause  ol  the  gitt  oTgrant'Taileth ; 
but  no  such  condition  is  annexed  to  the  estate  in  fee  simpTe~vesfed 
in  _any  man  in  his  natural  capacity,  but  in  case  where  the  donoror 
feoffor  reserveth  to  him  a  tenure,  and  then  the  law  doth  imply  a  con- 
dition  m  law  Dy  way  ot  escheat.  ^Iso  (as  hath  been  said)  no  writ  of 
escheat  lieth  but  in  the  three  cases  aforesaid,  and  not  where  a  body 
politic  or  incorporate  is  dissolved. 


GR^,  RULE  AGAINST  PERPETUITIES  (2d  Ed.)  §  48:  In 
early  times  conveyances  to  corporations  were  generally  gifts  to  ec- 
clesiastical corporations,  and  gifts  to  ecclesiastical  corporations  were 
usually  in  frankalmoign.  U^pn  the  dissolution  of  a  corporation,  land 
held  by  it  in  frankalmoign  escheated  to  the  donor,  for  the  donor  was 
the  lord.     Hence,  one  may  suspect,  arose  the  notion  that  on  the  dis- 

1  Vid.  tamen  ilich.  20  Jac.  C.  B,  Johnson  and  Morris,  that  it  shall  escheat. 
Hal.  MSS.,  which  also  cites  21  E.  4,  1,  and  21  H.  7,  9.  See  further  on  this 
subject,  Godb.  211,  and  Mo.  283,  which  are  with  Lord  Coke.  But  the  case  of 
Johnson  and  >«orway,  in  Win.  37  [1022],  which  seems  to  be  the  same  as  that 
cited  by  Lord  Hale,  is  against  the  donor,  though  it  is  not  mentioned  in  Winch 
that  the  judges  finally  decided  the  point.  See  also  contra  Lord  Coke,  the 
case  of  Southwell  and  Wade,  in  1  Ro.  Abr.  816  A,  pi.  1,  and  s.  c.  in  Poph.  91. 
— IJaif/rave's  Note  ad  loc. 


Ch.  2)  ESCHEAT   AND   POSSIBILITIES   OF   REVERTER  27 

solution  of  any  corporation  all  its  land  came  back  to  the  donor,  the 
fact  being  that  what  made  this  true  in  case  of  land  held  in  frankal- 
moign did  not  apply  to  land  held  on  other  tenures  by  corporations. 


GRAY,  RULE  AGAINST  PERPETUITIES  (2d  Ed.)  §  50:  But 
the  notions  which^Lorid  TnWp  impn<;pH  upon  his  hr^^^^i'^^"  ''^i''^  Tint  al- 
ways  long  survive  his  retirement.  In  Johnson  v.  Norway^  (1622) 
arose  thel^recise  question  whether,  on  the  dissolution  of  ?  rnrpnra- 
tion^its  land  wenTl;o  the  donor  or~escheated  to  the  lord.  Hobart,  C. 
J.,  said :  "The  great  doubt^oF  the  case  will  be  upon  the  barre  of  the 
defendant,  whether  by  the  death  of  the  abbot  and  the  monks,  the 
land  escheat  to  the  lords  of  whom  that  was  holden,  or  whether  that 
shall  go  to  the  donors,  and  to  the  founders,  and  he  thought  tliat  the 
land  shall  escheat,  to  which  Winch  seemed  to  agree."  The  report  adds 
that  the  Judges  said  they  would  advise  of  the  case,  and  gave  order  to 
argue  it  again;  but  Lord  Hale's  ]MSS.^  say  that  it  was  held  that  the 
land  escheated.  This  is  the  only  English  case  in  which  the  question 
has  been  decided. 


GRAY,  RULE  AGAINST  PERPETUITIES  (2d  Ed.)  §  13:  (3) 
Possibilities  of  Reverter. — Some  estates  were  terminable  by  specia,l 
or  collateral  limitations ;  for  instance,  an  estate  to  A.  till  B.  returned 
from  Rome ;  or  an  estate  to  A.  and  his  heirs  until  they  ceased  to  be 
tenants~ot  tlieHNIanor  of  Dale.  On  the  happening  of  the  contmgency, 
the  lebfifof  was  in  ot  his  old  estate  without  entry!  The  estate  was  not 
rut  sliort,  as  it  wouldjT^yg,  been  hy  entry  tor  breach  of  condition,  biit 
expired  by  the  terms  of  its  original  limitation.  After  a  life  estate  of 
this  kind  a  remainder~couldbe  limited.  After  such  a  fee  it  has  com- 
monly been  supposed  that  there  could  be  no  remainder ;  but  there  was 
a  so-called  possibility  of  reverter  to  the  feoffor  and  his  heirs  which 
was  not  alienableT  ~~  ~ 

§  14.  An  estate  in  "fee  simple  conditional,"  so  called,  was  by 
far  the  most  common  of  these  estates  with  special  limitations.  This 
was  an  esLate  to  the  donee  and  tiie  heirs  of  his  bod_v  (either 'all  the 
heirs  of  his  body  or  some  special  class  of  them),  with  a  provision  that 
on  the  failure  of  such  heirs  the  land  should  revert  to  the  donor  and 
his  heirs.  Sometimes  this  provision  was  expressed ;  but,  even  though 
not  expressed,  yet  on  a  gift  in  frankmarriage,  or  simply  to  A.  and  the 
heirs  of  his  body,  it  was  tacitly  implied.  If  the  donee  of  such  an 
pstate  had  issue  bnrn,  then  he  ronlrl  nlipnntp  thp  IqnH  sn  nd  tn  pncs  a 
fee  simple.  If  he  never  had  issue  born,  or  if  he  alienated  before  issue 
bom,  or  if  his  issue,  tliough  born,  had  all  died  before  there  had  been 

2  Winch,  37.  «  Cited  Co.  Lit  13  b,  Harg.  note. 


28  CLASSIFICATION  OF  FUTURE   INTERESTS  (Part  1 

any  alienation  of  the  estate,  then,  on  his  death,  or  the  subsequent  fail- 
ure of  his  issue,  the  land  reverted  to  the  donor  and  his  heirs.     This 
4Axr^  possibility  of  reverter  was^^alienable ;    but  it  could  be  released  to  the 

ten"anr"of_jhe  fee  simple_bonditionar     There  could  be  no  remainder 
after  a  fee  simple  conditional. 

§  18.  In  1285,  by  St.  Westm.  II,  13  Edw.  I,  c.  1,  De  Donis  Con- 
ditionalibus,  estates  in  fee  simple  conditional  were  turned  into  estates 
tail,  the  donor's  possibility  of  reverter  became  a  reversion,"lind  a  re~ 
mamder  could  be  created  after  the  fee  tail  as  after  a  life  estate.  Tn- 
terests  were  thus  secured  to  future  generations  of  a  family,  and,  fail- 
ing these,  to  the  remainderman  or  donor,  which  could  not  be  destroyed 
by  the  tenant  for  the  time  being  of  the  estate. 

§  19.  By  the  gradual  operation  of  (1)  the  doctrine  of  Collateral 
\yarranty;  (2)  the  allowance,  by  the  courts,  of  Common  Recoveries  as 
a"Tneahs  of  barring  estates  tail ;  and  (3)  the  Statlites  of  Fines,  4  Hen. 
VII,  c.  24,  and  32  Hen.  VIII,  c.  36,  estates  tail  became  alienable,  and 
the  reversions  and  remainders  after  them  destructible.  The  alienation 
of  estates  tail  is  at  present  regulated  in  England  by  St.  3  &  4  Wm. 
IV,  c.  74,  by  which  fines  and  recoveries  were  abolislied  and  simpler" 
modes  of  assurance  substituted.  Wherever  in  any  of  the  United 
States  estates  tail  have  been  preserved,  simpler  forms  of  conveyance 
haye  also  generallv  taken  the  place  of  fines  and  recoveries. 

§  20.  At  common^Jjuv  a  tenant  in  fee  could  either.  (1)  with  the 
consent  of  the  lord,  substitute  another  in  his  own  place  to  hold  the 
fee  of  the  lord ;  or  (2)  by-  subinfeudation,  grant  the  land  to  be  held  of 
himself.  But  the  former  mode  could  be  employed  only  when  the 
feoffee  was  to  hold  the  same  fee  that  the  feoffor  had  held ;  and,  there- 
fore, when  tlie  feoffor  conveyed  a  part  only  of  his  land  the  feoffee 
had  to  hold  of  him ;  and  so,  when  the  feoffor  conveyed  a  life  estate, 
or  a  fee  with  a  special  limitation  (e.  g.  to  A.  and  his  heirs,  tenants  of 
the  Manor  of  Dale),  or  (after  the  Statute  De  Donis)  an  estate  tail,  the 
feoffee  held  directly  of  him.  All  reversions  and  possibilities  of  re- 
verter were  therefore  always  in  the  hands  of  the  persons  of  whom 
land  was  held;  for  though  a  reversion  could  be  alienated,  it  carried 
with  it  the  lordship  of  the  particular  estate;  and  a  possibility  of  re- 
verter could  not  be  alienated.  Land  in  frankalmoigiialsocouT3!~not 
be  held  of  any  one  but  the   grantor. 

§  21.  The  St.  Westtn  III,  18  Edw.  I,  c.  1  (1289)Jaiown  as  the 
Statute  Quia  KniptoresTerrafiim,  enacts"  thaton~an  convevances~1n 
fee  the  tenaiTt"shall  not  hold  of  the  grantor,  but  of  ihe_£r^^^'^v''^  Inrr]^ 
THis  put  an  end  to  subinfeudation.  The  Statute  does  not  affect  gifts 
in  tail  or  for  life.  We  have  here  to  consider  its  effects  on  the  future 
interests  allowed  by  the  common  law. 

§  31.  (3).  Possibilities  of  Reverter. — These  rights,  as  their  name 
implies,  were  reversionary  rights ;  but  a  reversionary  right  implies 
tenure,  and  the  Statute  Quia  Emptores  put  an  end  to  tenure  between. 


Ch.  2)  ESCHEAT  AND   POSSIBILITIES   OF   REVERTER  29 

the  feoffor  of  an  estate  in  fee  simple  and  the  feoffee.  Therefore,  since_ 
tlTe  Statute,  there  can  be  no  possibiHty  of  reverter  j-emaining  in  the_ 
feoffor_upon  the  conveyance  of  a  fee ;  or,  in  other  words,  since  the 
Statute,  there  can  be  no  fee  with  a  special  or  coljateraLlirnitntion  ;, 
and  tlie  attempted  imposition  of  such  a  limitation  is  invalid.  The 
distinction  between  a  right  of  entry  for  condition  broken  and  a  pos- 
sibility of  reverter  is  this  •  after  the  statute,  a  feoffor,  by  the  fcottment, 
substituted  the  feoffee  for  himself  as  his  lord's  tenant.  By  entry  for 
breach  of  condition,  he  avoided  the  substitution,  and  placed  himself 
in  the  same  position  to  the  lord  which  he  had  formerly  occupied.  The 
right  to  enter  was  not  a  reversionary  right  coming  into  effect  on  the 
teTmination  ot  an  estate,  but  was  the  right  to  substitute  the  estate  of 
the  grantor  tor  the  estate  of  the  grantee.  A  possibility  of  reverter,  on 
the  other  nana,  did  not  work  the  substitution  of  one  estate  for  ah-^ 
otherTTJut  was  essenti?ilTy'a  reversionaryinterest, — a  returning  ot  the 
land  to  the  lord  of  whom  it  was  held,  because  the  tenant's  estate  had 
determined. 

§  32.  In  accordance  with  the  doctrine  of  the  foregoing  section,  no 
possibility  ot  reverter  after  a  determinable  fee  has  been  sustained  in 
England  siiiLd  Llltr"Statute  Quia  Emptores.'*  A  fee  simj)le  subject  to 
a  conditional  limitation,  that  is,  to  a  shifting  use  or  executory  devise, 
is  sometimes  called  a  determinable  fee ;  but  this  is  not  technically 
exact.  A  determinable  fee  is  one  subject  to  a  special  limitation;  that 
is,  a  limitation  wliich"~marks  the  original  bounds  ot  the  estate,  an"^ 
after  which,  m  case  of  a  fee,  no  other  estate  can  be  granted^  A  condi-~ 
tional  limitation,  as  the  term  is  cominonly  used,  cuts  off  the  first  estate 
and  introduces  another.  An  estate  to  A.  and  his  heirs,  tenants  of  tlie 
Manor  of  Dale,  is  an  assurance  of  a  determinable  fee.  An  estate  to  A. 
and  his  heirs,  but  if  he  dies  unmarried,  then  to  B.  and  his  heirs,  is  a 
fee  simple  subject  to  a  conditional  limitation.  Determinable  fees  were 
good  at  rnmmnn  law,  but  were  done  away  witlT  by  the  Statute  Quia 
Emptores.  ,CQnditional  ^limitations  were  not  good  at  common  law ; 
they  were  first  introduced  by  the  Statutes  of  Uses  and  ot  Wills." 

4  But  see  Mott  v.  Danville  Seminary  et  al.,  129  111.  403,  21  N.  E.  927  (1889) ; 
Presbyterian  Church  v.  Venable,  159  111.  215,  42  N.  E.  836,  50  Am.  St.  Rep. 
159  (1890) ;  Miller  v.  Riddle,  227  111.  53,  81  N.  E.  48,  118  Am.  St.  Rep.  2(>1 
(1907) ;  North  v.  Graham.  235  111.  178,  85  N.  E.  267,  18  L.  R.  A.  (N.  S.)  624, 
126  Am.  St.  Rep.  189  (1908). 

5  See,  also,  Gray,  Rule  against  Perpetuities  (2d  and  3d  Eds.)  §§  774-788. 


30 


CLASSIFICATION   OF  FUTURE   INTERESTS 


(Part  1 


/L 


CHAPTER  III 

REVERSIONS.  VESTED  REMAINDERS  AND  EXECUTORY 

INTERESTS 


2  POLLOCK  &  MAITLAND,  HISTORY  OF  ENGLISH  LAW, 
21,  22:  Two  technical  terms  are  becoming  prominent,  namely,  "re- 
vert" and  "remain."  For  a  long  time  past  the  word  "reverti"  alternat- 
ing with  "redire"  has  been  in  use  both  in  England  and  on  the  mainland 
to  describe  what  will  happen  when  a  lease  of  land  expires :  The  land 
will  "come  back"  to  the  lessor.  We  find  this  phrase  in  those  "three  iTIe 
leases"  which  Bishop  Oswald  of  Worcester  granted  in  King  Edgar's 
day.  But  occasionally  in  yet  remote  times  men  would  endeavour  to 
provide  that  when  one  person's  enjoyment  of  the  land  had  come  to  an 
end,  the  land  should  not  "come  back"  to  the  donor  or  lessor,  but  should 
"remain,"  that  is,  stay  out  for,  some  third  person.  The  verb  ''reman- 
ere"  was  a  natural  rontrast  to  the  verb  "reverti"  or  "redire":  the  land 
is  to  stay  out  instead  of  coming  back.  Both  terms  were  in  common  use 
in~the  England  ot  the  thirteenth  century,  and  though  we  may  occasion- 
ally see  the  one  where  we  should  expect  the  other,  they  are  in  general 
used  with  precision.  Land  can  only  "revert"  to  the  donor  or  those  who 
represent  him  as  his  heirs  or  assigns ;  if  after  the  expiration  of  one  es- 
tate the  land  is  not  to  come  back  to  the  donor,  but  to  stay  out  for  the 
benefit  of  another,  then  it  "remains"  to  that  other.  Gradually  the 
terms  "reversion"  and  "remainder,"  which  appear  already  in  Edward 
I's  day,  are  coined  and  become  technical ;  at  a  yet  later  date  we  have 
"reversioner"  and  "remainderman." 

When  creating  a  life  estate  it  was  usual  for  the  donor  to  expressly 
say  that  on  the  tenant's  death  the  land  was  to  revert  to  him.  But 
there  was  no  need  to  say  this ;  if  he  said  nothing  the  land  went  back 
to  the  donor  who  had  all  along  been  its  lord.  But  the  donor  when  mak- 
ing the  gift  was  free  to  say  that  on  the  death  of  the  life  tenant  the 
land  should  remain  to  some  third  person  for  life  or  in  fee.  As  a  mat- 
ter of  fact  this  does  not  seem  to  have  been  very  common;  but  in  all 
probability  the  law  would  have  permitted  the  creation  of  any  number 
of  successive  life  estates,  each  of  course  being  given  to  some  person 
living  at  the  time  of  the  gift. 


WILLIAMS  ON  REAL  PROPERTY  (21st  Ed.)  332,  333:  If  a 
tenant  in  fee  simple  should  grant  to  another  person  a  lease  for  a  term 
of  years,  or  for  life,  or  even  if  he  should  grant  an  estate  tail,  it  is  evi- 
dent that  he  will  not  thereby  dispose  of  all  his  interest ;  for  in  each  case, 
his  grantee  has  a  less  estate  than  himself.    Accordingly,  on  the  expira- 


Ch.  3)  REVERSIONS   AND   EXECUTORY   INTERESTS  31 

tion  of  the  term  of  years,  or  on  the  decease  of  the  tenant  for  life,  or  on 
the  decease  of  the  donee  in  tail  without  having  barred  his  estate  tail 
and  without  issue,  the  remaining  interest  of  the  tenant  in  fee  will  re- 
vert to  himself  or  his  heirs,  and  he  or  his  heir  will  again  become  tenant 
in  fee  simple  in  possession.  The  smaller  estate  which  he  has  so  granted 
is  called,  during  its  continuance,  the  particular  estate,  being  only  a  part, 
or  particula,  of  the  estate  in  fee.  And  durmg  the  continuance  of  suclf 
particular  estate,  the  mteresT"or"the  tenlint  irTTee  simple,  which  still 
reirialns  uncHsposed  of — that  is,  his  present  estate,  in  virtue  of  which  he 
is  to  have  again  the  possession  at  some  future  time — is  called  his  re- 
version. ■ 
If  at  the  same  time  with  the  grant  of  the  particular  estate,  he  should 
also  dispose  of  this  remaining  interest  or  reversion,  or  any  part  thereof, 
to  some  other  person,  it  then  changes  its  name,  and  is  termed,  not  a 
reversion  but  a  remainder.  Thus,  if  a  grant  be  made  by  A.,  a  tenant 
in  fee  simple,  to  B.  for  life,  and  after  his  decease  to  C.  and  his  heirs, 
the  whole  fee  simple  of  A.  will  be  disposed  of,  and  C.'s  interest  will  be 
termed  a  remainder,  expectant  on  the  decease  of  B.  A  remainder, 
therefore,  always  has  its  origin  in  express  grant:  a  reversion  merely 
arises  incidentally,  in  consequence  of  the  grant  of  the  particular  estate. 
It  is  created  simply  by  the  law,  whilst  a  remainder  springs  from  the 
act  of  the  parties. 


ID.  342:  A  remainder  chieflv  differs  from  a  reversion  in  this, — that 
bet^en  the_qwner  of  the  particular  estate  and  the  owner  oT  the  re- 
maiiider  (called  the  remainderman)  no  tenure  exists.  They  both  derive" 
their  estates  trom  the  same  source,  the  grariFoi  the  owner  in  fee  sim- 
ple ;  and  one  of  them  has  no  more  right  to  be  lord  than  the  other.  But 
as  all  estates  must  be  holden  of  some  person, — in  the  case  of  a  grant 
of  a  particular  estate  with  a  remainder  in  fee  simple, — the  particular 
tenant  and  the  remainderman  both  hold  their  estates  of  the  same  chief 
lord  as  their  grantor  held  before.  It  consequently  follows,  that  no  rent 
service  is  incident  to  a  remainder,  as  it  usually  is  to  a  reversion;  for 
rent  service  is  an  incident  of  tenure,  and  in  this  case  no  tenure  exists. 
The  other  point  of  diffprpnrp  hpt^'"^^r'  a  t-p-t^pT-ginn  p^nr]  q  r^t7''nindpr  \Yf^ 
have  already  noticed,  namely,  that  a  reversion  arises  necessarily  from 
the  grant  ot  the  particular  estate  being  simply  that  part  of  the  P'^tgtp 
of  the  grantor  wdiich  remains  undisposed  of.  but  a  remainder  is  always 
itself  created  by  an  express  grant. 


GRAY,  RULE  AGAINST  PERPETUITIES  (2d  Ed.)  §  113:  Re- 
versions.— All  reversions  are  vested  interests.  From  their  nature  they 
are  always  ready  to  take  effect  in  possession  whenever  and  however  the 
preceding  estates  determine. 


32  CLASSIFICATION  OF  FUTURE   INTERESTS  (Part  1 

FEARNE'S  CONTINGENT  REMAINDERS,  Vol.  1,  p.  216:  Tlie 
present  raparitynfJ^^"'"?"  effect  in  possession,  if  the  possession  were  to 
became"  vacantrancT  not  the  certainty  that  the  possession  will  become" 
vacant  before  the  estate  limited  in  remainder  determines,  universally 
distmguishes  a  vested  remainder  from  one  that  is  contmgent. 


WILLIAIMS  ON  REAL  PROPERTY  (21st  Ed.)  345:  But,  if  anjr 
estate,  be  it  ever  so  small,  is  always  ready^^om_jts  commencement  to 
its  end^to  come  mto  possession  the  moment  the  prior~estates^be  they 
what  they  may,  happen  to  determine, — •it'is  then  a  vested  remainder,  and 
recognised  m  law~as^an  estate  grantable  by  deed  ItjvvoiiTd~be~an  estate  ~ 
in  possession".  were~it  not  thatlother  estates  have  aTprior  claim ;  and 
their  priority  alone  postpones,  or  perhaps  may  entirely  prevent  posses2_ 
sion  being  taken  by  the  remainc[erman7~  The  gift  is  immediate  ;  but  the 
enj  oyment  must  necessarilv  depend  on  the  determination  of  the  estates 


of  those  who  have  a  prior  right  to  the  possession. 


GRAY,  RULE  AGAINST  PERPETUITIES  (2d  Ed.)  §  101 :  _A 
remainder  is  vested  in  A.,  when,  throughout  its  continuance,  A.,  or  A. 
and  his  heirs,  have  the  right  to  the  immediate  possession,  wlienever  and 
however  the  preceding  estates  may  determine.^ 


LEAKE  ON  PROPERTY  IN  LAND  (2d  Ed.)  230,  231 :  If  a  grant 
be  made  to  A.  for  life,  and  after  the  lapse  of  a  day  after  his  deatEt  o  BT 
tor  lite  "oFTnTeeTthe  limitation  to  13.  is  not  a  Femaiiider,  becauseltdoes 
noTgommencejn  pojsession_immecliately  on  the  determinatioiTof  the" 
particularestatei_it  is  a  limitation  of  a"  freehold  estate  to  commence  in 
futuro,  which  in  a^mmqn  law  conveyance  is  void,  and  the  reversion 
of  A.'s  estate  remains  in  the  grantor. 

1  See  definition  of  vested  remainders  adopted  by  Mr.  Justice  Cartwriglit  in 
his  opinion  in  Brown  v.  Brown,  247  111.  528,  93  N.  E.  357,  and  that  announced 
by  Mr.  Justice  Baker  in  ^Etna  Life  Ins.  Co.  v.  Hoppin,  214  Fed.  928,  131  C. 
C.  A.  224,  post,  p.  136;  also  the  distinction  between  vested  and 'contingent 
remainders  as  announced  by  Mr.  Justice  Dunn  in  Carter  v.  Carter,  234  111. 
507,  511,  85  N.  E.  292. 

Theplainest  case  of  a  vested  remainder  is  where  the^  limitations  are  to 
A-  lor  liTeT^wlth  remainder  to  B^and  hisnieTfs.  Brown  v.  Brown,  247  HIT 
52SnJ3nST~Er357 ;  Deadman  v.  Tantis,  230  111.  T43,  82  N.  E.  592,  120  Am.  St. 
Rep.  291 ;  Marvin  v.  Ledwith,  111  111.  144 ;  Knight  v.  Pottgieser,  176  111.  368, 
52  N.  E.  934;  Green  v.  Hewitt,  97  111.  113,  37  Am.  Rep.  102;  Clark  v.  Shawen, 
190  111.  47,  60  N.  E.  116 :  Rickner  v.  Kessler,  138  111.  636,  28  N.  E.  973.  See 
also  Vestal  v.  Garrett,  197  111.  398,  64  N.  E.  345;  Nicoll  v.  Scott.  99  111.  529, 
548 ;  Sprinsjer  v.  Savage,  143  111.  301,  32  N.  R  520 ;  O'Melia  v.  Mullarky,  124 
111.  506,  509,  17  N.  E.  36 ;    Barclay  v.  Piatt,  170  111.  384,  48  N.  E.  912.— Ed. 


Ch.  3)  REVERSIONS  AND   EXECUTORY  INTERESTS  33 

Also  a  limitation  which  ij  to  take  effect  in  defeasance  of  a  preceding  -<L-av 
estate,^  without  waiting  forthe  regular  determination  of  that  estate^ac- 
cordirfg  to  the  terms  of  its  limitation,  is  not  a  remainder ;  and  such  a 
limitation  is  void  at"^ommonlawr^But  the  preceding  particular  eslate 
may  be  made  determinaEfe  by  a^conditional  limitation,  and  the  estate 
limited  to  take  effect  in  possession  immediately  upon  its  determination, 
whether  that  happen  under  the  conditional  limitation  or  by  the  expira- 
tion of  the  full  term  of  limitation,  is  a  remainder. 

The  particular  estate  and  the  remainder  must  be  created  at  the  same 


tinieHSy  one  conveyance  or  instrument ;  for  if  the  particular  estate  be 
first  created,  leaving  the  reversion  in  the  grantor,  any  subsequent  dis- 
position can  be  effected  only  by  grant  or  assignment  of  the  reversion; 
w'hich  is  not  thereby  changed  into  a  remainder,  but  still  retains  its 
character  of  a  reversion,  to  which  the  tenure  of  the  particular  estate  is 
incident. 


ID.  p.  33:  A  feoffment  rniglTiJie_made:ivitk_aiL  express  apprapLda- 
tion  of  the  seism  to  a  series  of  estates  in  the  form  of  particular_es- 
tate  and  remamders,  and" the  livery  to  tlTelmmediate  tenant  was  then 
eft'ectual  to  transfer~tlTe~^eisin  to^rtm  IJetialT'oT^ll jtlie  tenants  irij::e- 
mainder','according  to  the  estates  limited.  But  future  estates  could 
only  be  limited'nmie'^Torm'^  remainders,  and  any  limitations  operat- 
ing to  shift  the  seisin  otherwise  than  as  remainders  expectant  upon  the 
determination  of  the  preceding  estate  were  void  at  common  law.  Thus, 
upon  a  feoffment,  with  livery  of  seisin,  to  A.  for  life  or  in  tail,  and 
upon  the  determination  of  his  estate  to  B.,  the  future  limitation  takes 
effect  as  a  remainder  immediately  expectant  upon  A.'s  estate.  (Co. 
Lit.  143  a ;  Williams,  Seisin,  67,  169.)  But  upon  a  feoffment  to  A.  in 
fee  or  for  life,  and  after  one  year  to  B.  in  fee;  or  to  A.  in  fee,  and  up- 
on his  marriage  to  B.  in  fee;  or  to  A.  in  fee  or  for  life,  and  upon  B. 
paying  A.  a  sum  of  money  to  B.  in  fee, — the  limitations  shifting  the 
seisin  from  A.  to  B.  at  the  times  and  in  the  events  specified,  as  they 
could  not  take  eft'ect  as  remainders,  were  wholly  void  at  common  law. 
(Co.  Lit.  378,  et  seq. ;  Fearne,  Cont.  Rem.  307.)  Such  limitations  be- 
came possible  in  dealing  with  uses  and  in  dispositions  by  will,  as  will 
appear  hereafter. 

The  cxigenciesof  tenure  required  that  thf^  gpisin  nr  immprlintp  fr^f- 
holcT  should  never  be~in  abeyance  but  that  tjiere_should  at  all  times  be 
a  tenantinvested  w'ith  the  seisin  ready,  ^njhe  one  hand,  to  meet  the 
claims  oI"the  lord  for  the  duties  and  services  of  the  tenure,  and,  on 
the  other  hand,  to  meet  adverse  claims  to  the  seisin,  and  to  preserve  it 
for  tFe  successors  in  thelltle^    (Butler's  note  (1),  Co.  Lit.  342b.) 

Tins  rule  had  important  effects  upon  the  creation  of  freehold  es- 
tates; for  it  followed  as  an  immediate  consequence  of  the  rule,  as  also 
from  the  nature  of  the  essential  act  of  con\eyance  by  livery  of  seisin, 
4  Kales  Prop. — 3 


>/kj^x^ 


34  CLASSIFICATION  OF  FUTURE   INTERESTS  (Part  1 

that  a  grant  of  the  freehold  could  not  be  made  to  commence  at  a  future 
time,  leaving  the  tenancy  vacant  during  the  interval.  (Buckler's  Case, 
2  Co.  55a;  Co.  Lit.  217a.) 

As  a  consequence  of  the  same  rule  if  a  feoffment  were  made  to  A. 
for  life  and  after  his  death  and  one  day  after  to  B.  for  life  or  in  fee, 
the  limitation  to  B.  was  void,  because  it  would  leave  the  freehold  with- 
out a  tenant  or  in  abeyance  for  a  day  after  the  death  of  A.  (Fearne, 
Cont.  Rem.  307.) 


GRAY,  RULE  AGAINST  PERPETUITIES  (2d  Ed.):  §  136. 
Si^'inyin^-  u>cs  seem  to  lia\e  lieen  first  recognized  in  Anon.  (Bro.  Ab. 
Feoff,  al  Uses,  340,  pi.  50)  (1538),  where  a  covenant  to  stand  seised  to 
the  use  of  B.  on  the  performance  of  an  act  by  B.  was  held  to  raise 
the  use  on  the  happening  of  the  contingency.  (See  Gilb.  Uses  (Sugd. 
Ed.)  164,  note.  So  Wood's  Case,  in  the  Court  of  Wards  (1560),  cited 
1  Co.  99a;  and  see  Mutton's  Case,  Dyer,  274b;  2  Leon.  223;  Dal.  91 ; 
Moore,  96,  376;  1  And.  42  (1573);  Woodliff  v.  Drury,  Cro.  El.  439; 
sub  nom.  Woodlet  v.  Drury,  2  Roll.  Ab.  791,  pi.  1  ('l595);  Mills  v. 
Parsons,  Moore,  547  (1595);  Blackbourn  v.  Lassels,  Cro.  El.  800 
(1600) ;  Wood  v.  Reignold,  Cro.  El.  764,  854  (1601) ;  Lewis,  Perp. 
57,  58.)  2 

2  Accord:  Eoe  v.  Traumer,  2  AYils.  75  (release  to  uses);  Eogers  v.  Eagle 
Fire  Ins.  Co.,  9  Wend.  (N.  Y.)  611  (bargain  and  sale) ;  Wynian  v.  Brown,  50 
'Sle.  139,  151-159 ;  Vinson  v.  Vinson,  4  111.  App.  138,  140.  See.  also,  Shackel- 
ton  V.  Sebree,  86  111.  616 ;  Latimer  v.  Latimer,  174  111.  418,  429,  430,  51  N.  E. 
5iS.— Ed. 

"Is  A  Bargain  and  Sale  to  a  Person  Not  in  Esse  GoodV — It  is  clear 
thaFk''h*^"OTHff'Tfi' "possession  or  reinauKlfc'r,  nWy  U6  I'UlsiM  U3- bargain  and 
sale  to  one  man,  on  a  consideration  paid  li.v  another.  (Sharington  v.  Strotten. 
Plowd.  298,  307.  2  Roll.  Ab.  784,  pi.  6,  7,  2  Inst.  672.  Bucldey  v.  Simonds, 
Winch.  59,  61.  Case  of  Sutton's  Hospital,  10  Co.  23,  34a.)  In  Gilbert  on  Uses 
K  (Sugd.  Ed.)  .398,  it  is  said:    'If  a  man  bargains  and  sells  lands  to  one  for  lite, 

^  (/t^  "  then  to  his  first  son  in  tail,  who  is  not  yet  born,  it  seems  this  is  a  good  con- 

tingent remainder,  rising  out  of  the  estate  of  the  bargainor;  but  'tis  said  by 
Newdigate  (2  Sid.  158)  that  liy  bargain  and  sale  only,  no  contingent  use  can 
be  supported,  it  seems  he  means  by  the  estate  of  the  bargainee;  but,  qut^re, 
whether  it  may  not,  ut  ante,  but  It  seems  a  feotfment  or  fine  is  the  surest 
way,  and  so  to  put  it  out  of  the  power  of  the  owner  of  the  land  to  destroy 
the  future  uses.  Qu;ere,  wliether  the  consideration  given  liy  the  party  in  uses 
w i  11  create  a  use  tcTflhe  not  iru^kse.  '  To  Ihls  iiiissaue  I  he  r^difor.  Mr.  gui^li?Trr 
has  appenaed  a  note:  'It  seems  clear  that  a  contingent  use  to  a  person  not 
in  esse  cannot  be  raisecTT^y  a  bargain  and  sale;  beciiuse  of  course  rue  m- 
tend(Hl  CcsLul  que  use  caniiot  pay  a  considei-ivFTon.  aTiTl  a  consideration  paid 
by  tlTe  leiitiiiL  I'ot'  lire  wouldnnt.  it  is  (•(uicciveil.  extend  to  tiie  unburir~son7~ 
In  till-  same  booU  (i)Uge  tn)  (iiTbert  says  tliat  a  mTiu  cannot  in  a  l)argain  and" 
sale  reserve  to  himself  a  power  of  making  leases,  because  'no  uses  will  rise 
without  consideration,  therefore  not  to  the  lessees ;  for  where  the  p(>rsons 
are  altogether  uncertain,  and  the  terms  unknown,  there  can  be  no  considera- 
tion.' To  this  the  editor  adds  in  a  note:  'But  although  a  general  power  of 
leasing  cannot  be  reserved,  yet  a  power  may  be  reserved  in  a  bargain  and 
sale  to  grant  a  lease  to  a  person  from  or  on  behalf  of  whom  a  valuable  con- 
sideration moved  at  the  e.xeeution  of  the  deed.''~  (See  also  Sugd.  Pow.  [8th 
Ed.]  1.38,  139.)  In  Sanders  on  Uses  (2  Sand.  Uses  [5th  Ed.]  62)  it  is  said  tliat 
'if  there  be  a  bargain  and  sale  for  the  life  of  the  bargainee,  with  a  power 


Ch.  3)  REVERSIONS  AND   EXECUTORY  INTERESTS  35 

§  137.  In  Anon.  (Bro.  Ab.  Feoff,  al  Uses,  339,  pi.  30)  (1152),  there 
was  a  feoffment  to  the  use  of  W.  and  his  heirs  until  A.  paid  a  sum  of 
money,  and  then  to  A.  and  his  heirs.  It  was  assumed  by  all  that  this 
was  a  good  shiftinguse.  (See  Brent  v.  Gill^ert,  Dal.  Ill  (1574) ;  Brent's 
Case,  2  Ceon.  14;  Dyer,  340  a  (1575);  Manning  v.  Andrews,  1  Leon. 
256  (1576);  Bracebridge's  Case,  1  Leon.  264;  sub  nom.  Harwell  v. 
Lucas,  Moore,  99  (1578);  Stonley  v.  Bracebridge,  1  Leon.  5  (1583); 
Smith  y.  Warren,  Cpo.  El.  688  (1599);  Anon.  Moore,  608;  Anon.  13 
Co.  48  (1609) ;  s.  c.,  semble,  Jenk.  328;  Sympson  v.  Sothern,  Cro.  Jac. 
376;  2  Bulst.  272;  sub  nom.  Simpson's  Case,  Godb.  264;  sub  nom. 
Simpson  v.  Southwood,  1  Roll.  R.  109,  137,  253  (1615);  Allen's  Case, 
Ley,  55  (1617) ;  Lewis,  Perp.  58-60.)  ^ 

§  142.  No  difference  on  the  score  of  destructibility  was  at  first  felt 
to  exist  betwieprcmainders  limited  by  way  of  use  and  conditional  linii- 
tations.  In  Brent  v.  Gilbert,  Dal.  Ill  (1574),  there  was  a  feoft'ment 
to" the  use  of  A.  and  of  such  woman  as  should  be  his  wife  at  his  death, 
for  their  lives,  with  remainders  over.  A.  levied  a  fine,  married  B.,  and 
died.  The  feoffees  entered.  It  was  held  by  the  Court  of  Queen's 
Bench  that  the  entry  of  the  feoffees  revived  the  shifting  use  to  B.  The 
same  result  would  have  followed  had  B.  had  a  remainder  limited  by 
way  of  use.  In  Brent's  Case,  2  Leon.  14;  Dyer,  340a  (1575),  the  facts 
were  the  same,  except  that  it  appeared  that  A.,  before  levying  the  fine, 
made  a  feoffment  in  which  the  feoffees  joined.  In  the  Common  Pleas, 
Dyer,  C.  J.,  Manwood,  and  Monson,  JJ.  (Harper,  J.,  dissenting),  held 
that  if  the  entry  of  the  feoffees  was  necessary  to  revive  the  use,  they 
were  debarred  from  entry ;  and  Dyer,  C.  J.,  and  ]\Ianwood,  J.,  thought 
such  entry  was  necessary.  There  is  no  indication  that  the  opinions  of 
the  judges  would  have  been  altered  if  B.  had  had  a  remainder  instead 
of  a  shifting  use.  Indeed  it  is  said  that  B.  "shall  take  by  way  of  re- 
mainder." (2  Leon.  16.  See  Dillon  v.  Fraine,  Pop.  70,  Id;  1  Sugd. 
Pow.  r7th  Ed.]  13-15 ;  and  cf.  Hoe  v.  Garrell  (1591),  cited  in  Pells  v. 
Brown,  2  Roll.  R.  216,  220;  Palm.  131,  136.) 

for  him  to  make  leases,  a  lease  made  under  that  power  cannot  operate  as  an 
appointment  of  the  use  to  the  lessee.'  ^ 

"The  statciiicnt  of  these  eminent  lawyers  appears  to  have  little  support  el-        />~i*->^ 
ther  in  prnKijile  or  authority.     As  a   cnnsidcration  iiaid   tiy   one  iHTson   can  ^J 

raisH  a  use,  and  ^\\^\\  U  luUire  us^,  toanotlier,  tPere  s^■en]s  no  IVHli^oii  ull^-jt 
shiUllil  mil  I'llli^e  a  Use  lo  a  person  not  in  e^i^^'G. — If  the  uesl  ui  k\\w  iisse  llll(!'  to 
prr?"  or  proillise  tlie'Tonsiut'ratKm,  rTiat  w<*ni(l'lK'  a  reason  for  ri'ijuiriiii:  him 
to  iDe  in  esse;  but  as  the  consideration  can  he  paid  or  promised  by  a  stran- 
ger, tlie  reason  fails.  A  man  may  covenant  to  stand  seised  to  the  use  of 
relatives  not  in  esse,  e.  !!r'.  m  mfi  hse  of  ti\^  (L'ovenanror's  unliorn  cliUdren.  ^ 
(!:?ee  Bolls  v  Winton.  Xoy.  Vl'l\  Mildmay's  Case.  1  Co.  175,  170b,  177a -^War- 
wlclc  v.  Gerrard.  '1  Vern.  7;  '1  Hayes.  Conv.  |.')tli  Ed.l  89  et  se<i. ;  ,Sut,'d.  I'ow. 
[8th  Ed.l  13.S.  i:!9.  But  cf.  Bradford  v.  (irillin.  40  So.  Car.  408,  471,  §  39Sa, 
IK)st :  4  Kent.  Com.  49(!.)  A^d  \\  wonhl  >;eeni  that  if  a  use  can  l>e  raised  t_o 
an  unljoin  person  by  a  (^o^•(:Mulllt  to  stand  seised,  it  can  lu^  ra-Laea-tii  snch  \tvx- 
son  Dy  a  harpiin  ana  sale."     (iray.  Rule  a'-^^unst  Perpetuities  (lid  Ed.)  g§  Gl7<S. 

?  Accord:    Bryan  v.  Spires,  I>  Brewst.  (,1'a.)  5S0. — £d. 


36  CLASSIFICATION  OF  FUTURE   INTERESTS  (Part  1 

SIR  EDWARD  CLERK'S  CASE. 

(Court  of  Queen's  Bench,  1599.    6  Coke,  17b.) 

In  an  assize  by  Parker  against  Sir  Edward  Clere,  Knight,  of  lands 
in  the  county  of  Norfolk,  the  case  in  effect  was  such.  Clement  Har- 
wood  seisedof  three  acres  of  land,  each  of  equal  value,  held  in  capite, 
made  a  feoffnient  in  fee  of  two  of  them  tothe  usejof  his  wife  for  h_er 
life7  tor  hefjointure,  and  afterwards  made  a  teottment  by  deed  of  tlie 
third  acre,  to  the  use  of  such  person  and  persons,  and  of  such  estate  • 
ahd'estates  as  he  should  limit  and  appoint  by  his  last  will  in  writing,^ 
and  atterwards  by  his  last  will  in  writing  he  devised  the  said  third 
acre  to  one  in  fee  (under  whom  the  plaintiff  claimed).  And  wheth- 
er'this  devise  was  good  for  all  the  said  third  acre,"  or  not,  oT  tor" 
t^vo"  parts  ot  it,  or  void  tor  tlie  whole,  was  the  question.  And  in 
those  cases  four  points  were  resolved  by  Popham,  Chief  Justice, 
and  Baron  Clark,  Justices  of  Assize  of  the  said  county,  upon  con- 
ference had  with  the  other  Justices :  U  If  a  man  seised  of  lands  in  fee, 
makes  a  feoft'ment  to  the  use  of  such  person  and  persons,  and  of  such 
estate  and  estates  as  he  shall  appoint  by  his  will,  that  by  operation  of 
law  the  use  doth  vest  in  the  feoffor,  and  he  is  seised  of  a  qualified  fee, 
that  is  to  say,  till  declaration  and  Hmitation  be  made  according  to  his 
power.  Vide  Lit.  fol.  109  a.  \Vhen  a  mgn  makes  a  fenft'ment  to  the 
use  of  his  last  will,  hehas  the  use  in  the  mean  time,  ^s  If  in  such  case 
^  the'feoffor  by  his  wilUimjts  estates  according  to  his  power  reserved  to 
^  '«<'-»<j».  him  on  the  feoffment,  there  the  estates  shall  take  eft'ect  by  force  of  the 
^^  f  f^  t.  ^  '  feoffment,  and  the  use  is  directed  by  the  will ;  so  that  in  such  case  the 
,  -  will  is  but  declaratory:  but  if  in  such  case  the  feoft'or  by  his  will  in 

i^-*''^^^  writing  devises  the  land  itself,  as  owner  of  the  land,  without  any  refer- 

ence to  his  authority,  there  it  shall  pass  by  the  w^ill,  for  the  testator  hacP 
an  estate  devisable  in  him,  and  power  also  to  limit  an  use,  and  he  had 
election  to  pursue  which  of  them  he  would ;  and  when  hejievised  the 
'  _  land  itself  without  any  reference  to  his  authority  or  power,  he  declared 

U.  Pfvw^  c^nA^^^f^  his  intent,  to  devise  an  estate  as  owner  of  the  land.  b"y  his  wall,  and  not" 
f\^-^^.^^^  f-  /jT^^vu**"  toTTmit  ari  use  according  to  his  authority;  and  in  such  case  the  land 
if    c^  r^^j-y^^^  ,  being  held  in  capite,  the  devise  is  good  for  tw^o  parts,  and  void  for  the 

third  pa  ft.  For  as  the  owner  of  the  land  He  cannot  dispose  of  more ; 
and  in  such  case  the  devise  cannot  take  effect  by  the  will  for  two  parts, 
and  by  the  feoffment  for  the  third  part:  for  he  made  his  devise  as 
owner,  and  not  according  to  his  authority,  and  his  devise  shall  be  of  as 
much  validity  as  the  will  of  every  other  owner  having  any  land  held 
in  capite.  3.  If  a  man  makes  a  feoffment  in  fee  of  lands  held  in  capite, 
1  ^  to  the  use  o^  his  last  will,  although  he  devises  the  land  with  reference 

"TT*^    ^  <H^^tyC      to~ttre  feoffment,  yet  the  will  is  void  for  a  third  part:  for  a  feoffmeT\t 
i\  Vr^  >c^*/^         to  thengse  of  his  will,  and  to_the  use  ot  him  and  his  heirs  is  all  one.    % 
Irf  the  case  at  bar,  when  Clement  Harwood  had  conveyed  two  parts  to 
^he  use  of  his  wife  by'^ct"S3cecuted,  he  could  not  as  owner~df  tlie  land 


r 


Ch.  3)  REVERSIONS   AND   EXECUTORY   INTERESTS  37 

devise  any  part  of  the  residue  by  his  will,  so  that  he  had  no  power  to 
de\'Tse  any  part  thereof  as  owner  of  the  land  and  because  he  had  not 
elected  as  m  the  case  put  before,  either  to  lirniFTt'according  ^toETs 
povrer,  or  to  devise  it  as  owner  of  the  land  (for  in  the  case  at  bai%~Eav^ 
in^,  ag  mvner  ot  the  land^onveyed  two  parts  to  the  use  of  his  wife  ut 
supra)  he  could  not  make  any  devise  (thereof)  therefore  the  devise 
ought  of  necessity  to  enure  as  a  limitation  of  an  use,  or  otherwise  the" 
devise  shall  be  utterlv  void;  and  judgment  was  given  accordingly  for 
the  plaintiff  for  the  whole  land  so  devised.  And  afterwards  on  the 
said  judgment  Sir  Edward  Clere  brought  a  writ  of  error  in  the  King's 
Bench,  sed  non  praevaluit,  but  the  judgment  was  affirmed.* 


GRAY,  RULE  AGAINST  PERPETUITIES  (2d  Ed.)  §  144:  The 
first  indication  of  the  idea  that  a  conditionaMimitation  of  a  freehold 
interest  was'^indestructible  appears  in  Smith  v.  Warren,  Cro.  El.  6^8 
(1599):  Irrthat  case"  a  fine  was  levied  to  the  use  of  the  conusee  and  his 
heirs  on  condition  that  he  would  pay  an  annuity  to  the  conusor,  and  on 
default  of  payment  the  land  should  be  to  the  use  of  the  conuser  for 
his  life,  and  one  year  over.  The  conusee  made  a  feoffment  in  fee ;  the 
annuity  was  not  paid,  and  the  conusor  entered  on  the  feoffee's  lessee. 
The  Court  of  Common  Pleas  held  that  the  feoffment  had  not  destroyed 
the  use  to  the  conuser,  "for  it  is  a  charge  or  burden  upon  the  land, 
which  goes  along  with  the  land,  in  whosesoever  hands  it  comes.  And 
being  limited  to  the  conusor  himself,  Glanville  [J.]  conceived  it  to  be  a 
condition  unto  him ;  but  if  it  had  been  to  a  stranger,  to  have  arisen  up- 
on such  a  condition,  the  nonperformance  thereof  had  been  a  springing 
[or,  as  we  should  now  say,  'shifting']  use  unto  him;  for  now  it  is  mere- 
ly a  tie  and  charge  upon  the  land,  which  is  not  destroyed  by  the  feoff- 
ment ;  and  although  it  be  a  future  use,  it  may  be  well  raised  upon  non- 
performance of  the  condition;  as  it  was  adjudged  in  Bracebridge's 
Case."  [This  is  not  Bracebridge  v.  Cook,  Plowd.  416,  as  stated  in  the 
margin,  but  Bracebridge's  Case,  1  Leon.  264.]  The  springingjise  hprf^ 
was  preser\-ed  under  circumstances  in  which,  according  to  Chudleigh's 
Case,  a  remamder  limited  by  way  of  use  would  have  been  destroyed. 
The  fact  that  the  use  arose  as  a  penalty  tor  breach  of  a  condition  in  fa- 
vor of  the  grantor  seems  to  have  had  some  influence — it  is  hard  to  say 
precisely  what — on  the  decision. 

4  See  Lord  Eldon's  remarks  in  Maundrell  v.  Maundrell,  10  Ves.  246.  254  et 
seq.  (1804),  263  et  seq.  (1S05),  accord.,  disapproving  Goodill  v.  Brigliam,  l  B. 
&  P.  192  (1798). 


38  CLASSIFICATION   OF   FUTURE   INTERESTS  (Part   1 

PELLS  V.  BROWN. 

(Court  of  King's  Bench,  1620.     Cro.  Jac.  500.) 

Replevin  for  the  taking  of  three  cows  at  Rowdham.  The  defendant 
justifies  for  damage  fesant  as  in  his  freehold.  The  plaintiff  traverseth 
the  freehold  ;  and,  thereupon  being  at  issue,  a  special  verdict  was  found, 
in  which  the  case  appeared  to  be,  That  one  William  Brown,  father  to 
the  defendant,  being  seised  of  this  land  in  fee,  having  issue  the  defend- 
ant, his  son  and  heir,  and  Thomas  Brown  his  second  son,  and  Richard 
Brown,  a  third  son,  by  his  will  in  writing  devised  this  land  to  "Thomas 
his  son  and  his  heirs  forever,  paying  to  his  brother  Richard  twenty 
pounds  at  the  age  of  twenty-one  years ;  and  if  Thomas  died  without  is- 
sue, living  \A^illiam  his  brother,  that  then  William  his  brother  shoiin 
have  those  lands  to  him,  and  his  heirs  and  assigns  foreyer,  paymg  the 
saicl  sum  as  Thomas  should  nave~pOTdr"  'T nomas  enters,  aiTd  suffers  a 
common  recovery,  with  a  single  voucher,  to  the  use  of  himselt  and  his" 
heirs ;  and  afterwards  devises  it  to  the  wife  of  Ldward  Pells,  the  plain-' 
iv^  and  her  heirs ;  and  dies  without  issue,  living  the  said  William 
Brown,  who  entered  upon  Edward  Pells,  and  took  the  distress. 

This  case  was  twice  argued  at  the  bar,  and  afterward  at  the  bench ; 
and  the  matter  was  divided  into  three  points. 

First,  whether  Thomas  had  an  estate  in  fee,  or  in  fee-tail  only? 

Secondly,  Admitting  he  had  a  fee,  whether  this  limitation  of  the  fee 
to  William  be  good  to  limit  a  fee  upon  a  fee  ? 

Thirdly,  If  Thomas  hath  a  fee,  and  William  only  a  possibility  to  have 
a  fee.  Whether  this  recovery  shall  bar  William,  or  that  it  be  such  an 
estate  as  cannot  be  extirpated  by  recovery  or  otherwise  ? 

As  to  the  first,  all  the  justices  resolved,  that  it  is  not  an  estate-tail 
in  Thomas,  but  an  estate  in  fee ;  for  it  is  devised  to  him  and  his  heirs 
forever ;  and  also  paying  to  Richard  twenty  pounds ;  both  which  clauses 
show  that  he  intended  a  fee  to  him.  And  the  clause,  "If  he  died  with- 
out issue."  is  not  absolute  and  indefinite,  whensoever  he  died  without 
issue,  but  it  is  with  a  contingency,  "If  he  died  without  issue,  living 
William ;"  tor  he  might  survive  William,  or  have  issue  alive  at  the 
time  of  his  death,  living  William ;  in  which  cases  William  should  never 
have  it,  but  is  only  to  have  it  if  Thomas  died  without  issue,  living 
William.  Vide  19  Hen.  6,  pi.  74.  12  Edw.  3,  pi.  8.  7  Co.  41,  Beris- 
ford's  Case.  10  Co.  50,  Lampet's  Case.  And  therefore  it  is  not  like 
to  the  cases  cited  on  the  other  part,  5  Hen.  5,  pi.  6,  37.  Ass.  pi.  15  & 
16,  and  Dyer,  330,  Clactey's  Case ;  for  it  is  an  exposition  of  his  intent 
what  issue  should  have  it,  viz.  of  his  body ;  and  whensoever  he  died 
without  issue,  the  land  should  remain,  &c.  But  here  it  is  a  conditional 
limitation  to  another,  if  such  a  thing  happen ;  and  therefore  they  all  re- 
lied upon  the  book,  Dyer,  124,  and  Dyer,  354,  which  are  all  one  with 
this  case. 


Ch.  3)  REVERSIONS   AND   EXECUTORY   INTERESTS  39 

Secondly,  They  all  agreed  that  this  is  aj^ood  limitation  of  the  fee  to 
William  by  way  of  that  contingency^jiot_by_,way_Qf  immediate  remain- 
der;  for  they  all  agreed  it  cannot  be  by  remainder;  as,  if_one  deviseth 
land  to  one  and  his  heirs,  and  if  he  die  without  heir,  that  it  shall  remain 
to'another,  it  is  void  and  repugnant  to  the  estate ;  for  one  fee  carinot  be 
injremainder  after  another ;  for  the  law  doth  not  expect  the  determina- 
tion of  a  fee  by  his  dying  without  heirs,  and  therefore  cannot  appoint 
a  remainder  to  begin  upon  determination  thereof,  as  19  Hen.  8,  pi.  8, 
and  29  Hen.  8,  Dyer,  33.  But  bv  way  of  contingency,  and  by  way  of 
executory  devise  to  another,  to  deternnne  the  one  estate  and  limit  it  To 
another,  upon  an  act  to  be  performed,  or  in  failure  of  performance 
thereof  &c.,  for  the  one  may  be  and  hath  always  been  allowed:  as  de- 
vise of  his  land  to  his  executors  to  sell,  if  his  heir  fail  of  payment  of 
.such  a  sum  at  such  a  day,  this  is  an  executory  devise.  So  the  case  cited 
in  Boraston's  Case,  3  Co.  20,  of  Wellock  and  Hammond,  where  a  de- 
vise was  to  the  eldest  son  and  heirs^paying  such  a  sum  to  the  vounger 
sons,  otherwise  that  the  land  shoiiTd  be  to  him  and  his  heirs,  is  a.gQod 
executory_devise.  And  a  precedent  was  shown,  Trinity  Term,  38  EHz. 
RoTir867,  Fulmerston  v.  Steward,  where  upon  special  verdict  it  was 
adjudged,  that  whereas  Sir  Richard  Fulmerston  devised  to  Sir  Edward 
Cleere  and  Frances  his  wife,  daughter  and  heir  of  the  said  Sir  Richard 
Fulmerston,  certain  lands  in  Elden,  in  the  county  of  Norfolk,  to  them 
and  the  heirs  of  Sir  Edward  Cleere,  upon  condition  they  should  assure 
lands  in  such  places  to  his  executors  and  their  heirs,  to  perform  his 
will ;  and  if  he  failed,  then  he  devised  the  said  lands  in  Elden  to  his  ex- 
ecutors and  their  heirs;  it  was  adjudged  to  be  a  good  limitation  and  no 
condition;  for  if  it  should  be  a  condition,  it  should  be  destroyed  by  the 
descent  to  the  heir ;  but  it  is  a  limitation,  and  as  an  executory  devise  to 
his  executors,  who  for  non-performance  of  the  said  acts  entered  and 
sold;  and  adjudged  good.  So  here,  &c.,  for  it  is  a  good  executory  de- 
vise upon  this  limitation.  And  Doderidge  said,  the  opinion  29  Hen.  8, 
Dyer  33,  was  that  such  a  limitation  in  fee  upon  an  estate  in  fee  cannot 
be,  and  it  had  been  oftentimes  adjudged  contrary  thereto.  _ 

To  the  third  point,  DodEridoe  held,  that  this  recovery  should  bar  /9-A^>j>  '^^^--^-yLf 
William ;  for  he  had  but  a  possibility  to  have  a  fee^nd  (|uasi  a  contin- 
gent estate,  which  is  destroyed  by  this  recovery  beforcit  came  in  esse ; 
for"  otherwise  it  would  be  a  niTschicvous  kind  of  perpetuity,  which 
couTcl  not  by  any  means  be  dcsti oyed  ^.\nd  although  it  was  objected, 
thaFlPrecoVt'ry  shiill  not  bar  but  where  a  recovery  in  value  extends 
thereto,  as  appears  by  Capel's  Case,  1  Co.  62  a,  where  a  rent-charge 
granted  by  him  in  remainder  was  bound,  yet  he  held,  that  this  recovery 
destroying  the  immediate  estate,  all  contingencies  and  dependencies 
thereupon  are  bound,  and  a  recovery  shall  bind  every  one  who  cannot 
falsify  it;  and  here  he  who  hath  this  possibility  cannot  falsify  it,  there- 
fore he  shall  be  bound  thereby.  But  all  the  other  Justices  were  herein 
against  him,  that  iliis  recovery  shall  not  bind:  tor  he  who  sullered  the 
recover}^  had  a  fee,  and  William  Brown  had  but  a  possibility  if  he  sur- 


40  CLASSIFICATION  OF  FUTURE   INTERESTS  (Part  1 

vived  Thomas ;  and  Thomas  dying  without  issue  in  his  Hf e,  no  recovery 
in  value  shall  extend  thereto^mless  he  had  been  party  15y  wayof 
voucliee,"and  then  it  should ;  forby  entering  into  the  warranty  he  gave 
all  his  possibility;  therefore  they  agreed  to  the  case  which  Damport  at 
the  bar  cited  to  be  adjudged,  34  Eliz.,  where  a  mortgagee  suffers  a  re- 
L  U.  jLJ"  i«.«^  V.  cover}'-,  it  shall  not  bind  the  mortgagor;  but_ii  he  had  been  party  by 
/ua/v<r  <r 'T-c«,«orT,-,  way_of  voucher,  it  had  been  otherwise.^  And  here  is  not  any  estate  de- 
H^  i^^.  L^  ,6-1^'  pending  upon  the  estate  of  Thomas  Bray,  but  a  collateral  and  mere  pos- 
sjbiHty,  which  shall  not  be  touched  by  a  recovery.  And  if  such  recov- 
ery should  be  allowed,  then  if  a  man  sliduld^evise,  that  his  heir  should 
make  such  a  payment  to  his  younger  sons  or  to  his  executors,  otherwise 
the  land  should  be  to  them ;  if  the  heir  by  recovery  might  avoid  it,  it 
would  be  very  mischievoiis^_and_  might  frustrate_all  devisesj_and  there 
is  no  such  mischief  tliat^t_should  maintain  perpetuities^for  it  Jsjuit  injT 
particular  case,  and~upon  a  mere  contingency,  which  jjeradventure  nev- 
er may  happen,  and  may  be  avoided  bvToining  him  in  the  recovery  who 
hath  such  a  contmgency :  and,  on  the  other  part,  it  would  be  far  more, 
an3~a  greater  mischief,  thaFaTTexecutory  devises  should  by  such  means 
be'^destroyecE  ' 

Houghton,  Justice,  in  his  argument  put  this  case:  if  a  man  give  or 
devise  lands  to  one  and  his  heirs  as  long  as  J.  S.  hath  issue  of  his 
body,  he  shall  not  by  recovery  bind  him  who  made  this  gift,  without 
making  him  a  party  by  way  of  vouchee ;  for  a  recovery  against  tenant 
in  fee-simple  never  shall  bind  a  collateral  interest,  title,  or  possibility, 
as  a  condition  or  covenant,  or  the  like ;  wherefore  they  all  (except  Dod- 
eridge)  held  that  this  recovery  was  no  bar. 

Then  Dodj^ridge  took  exception  to  the  verdict,,  that  the  lands  were 
not  found  to~^e  holden  in  soccage ;  for  otherwise  it  might  be  in- 
tencled  to~be  holden  in  knight's  service ;  and  so  it  shall  be  intended ;  and 
then  the  devise  is  void  for  a  third  part :  and  so  it  was  resolved  24  Eliz. 
Dyer,  that  it  ought  to  be  shown  that  the  land  was  holden  in  soccage, 
otherwise  the  devise  was  not  good  for  the  entire.  But  all  the  Justices 
held  it  not  to  be  material  (as  this  case  is) ;  for  the  issue  is,  whether  it 
were  the  freehold  of  William  Brown,  who  is  found  to  be  heir  tO'  the 
devisor.  Then  although  it  were  admitted  thaQhe  land  was  held  "by" 
ki-ui^ht's  servirPj  yet  ^p  hath  the  entire  (viz.  two  parts  by  the  devise, 
and  a  third  part  by  descent) :  wherefore  the  tenure  is  not  material,  as 
this  case  is ;  andjtjwas  adjudgedtor  the  deiendanfT"" 

6  Accord  (where  conveyance  inter  vivos) :  Stoller  v.  Doyle,  257  111.  309,  100 
N.  E.  959  (1913). 

But  see  Littlofield  v.  Mott,  14  R.  I.  288 ;  also  Kron  v.  Kron,  195  111.  181,  62 
N.  E.  S09  (the  decision  of  which  may  bo  supported  on  the  ground  that  the 
gift  over  was  to  take  effect  upon  the  first  taker's  intestacy) ;  also  Stewart 
V.  Stewart,  186  111.  60,  57  N.  E.  885  (which  may  he  supported  on  the  ground 
that  the  gift  over  was  to  take  effect  upon  an  attempted  alienation  by  will 
by  the  first  taker). 
«  In  tjie^ following  cases  the  court  said  that  "a  fee  cannot  be  limited  after 

S  a  feenj^doed":     Siegwald  v.  Sieg\\'ald,  37  111.  43074^5^;    Summefs~vr^mttli7— 

12TTTTr6557l>50,  21  N.  E.  191 ;    Glover  v.  Condell,  163  111.  566,  592,  45  N.  B. 


Ch.  4)  CONTINGENT   REMAINDERS  41 

CHAPTER  IV 
CONTINGENT   REMAINDERS 


SECTION  1.— VALIDITY 


WILLIAMS  ON  REAL  PROPERTY  (2Lst  Ed.)  356-358*:  The 
simplicity  of  the  common  law  allowed  of  the  creation  of  no  other  es- 
tates than  particular  estates,  tollowed  by  the  vested  remainders,  which 
have  already  occupied  our  attention.  A  contingent  remainder — a  re- 
mainder not  vested,  and  \vhich  never  miphf  ^-o^t — w:^^  In^ig  regarded 
as  illegal.  Down  to  the  reign  of  Henrv  VI  not  one  instance  is  to  be  oA-v^-.A-  /H/~o 
found  or'  a  contingent  remainder  being  held  valid. ^  The  early  author- 
ities on  the  contrary  are  ratner  opposed  to  such  a  conclusion.^     And, 

173.  35  L.  R.  A.  360;  Strain  v.  Sweeuy,  163  111.  603,  005,  45  N.  E.  201; 
Stewart  v.  Stewart,  1S6  111.  60,  57  N.  E.  885;  Kron  v.  Kron,  195  111.  181,  62 
N.  E.  809. 

In  the  following  cases  the  court  said  that  by  deed  a  fee  cannot  be  limited 
qnlTTee'hy  wtiy  of  reitiainaer,  or  that  there  can  be  no  I'emiTtTKtgr^gTTer  a 
ves£ecliemainUer  in  lee:  Peoria  v.  Darst,  lUl  111.  609,  616,  619;  McCaHp- 
bellv:  Mason,  UjTTyC^OO,  509,  38  N.  E.  672;  Smith  v.  Ivimbell,  153  111.  368, 
372,  38  N.  E.  1029. 

Jr.  Morton  v.  Babb,  251  111.  488,  96  N.  E.  279,  where  the  limitations  were 
by  deed  to  A.  and  his  heirs,  provided  that,  in  case  A.  should  die  leaving  no 
issue,  then  the  premises  should  revert  unto  the  grantor  and  his  heirs,  the 
court  held  that  the  grantor  had  a  possibility  of  reverter  after  a  determinable 
fee. 

A  power  created  by  deed  to  appoint  a  new  trustee  is  valid.  Morrison  v. 
KeHy,  22.  ill.  010,  <4  Am.  Dec.  169;  Lake  v.  Brown,  116  111.  83,  4  N.  E.  773 : 
Craft  V.  I.,  D.  &  W.  Ry.  Co.,  166  111.  580,  46  N.  R  1132;  West  v.  Fitz,  109 
111.  425,  442  (semble).  It  would  seem,  also,  fbat  rlnnsips  in  depds  prnviflinir 
for  the  shitting  of  the  legal  title  in  fee  from  one  trustee  to  a  successor  in 
trust  wirliout  any  aribOlntment  were  also  valid.  Equitable  Trust  Co.  v. 
Fisher,  106  111.  189  (semble) ;  Irish  v.  Antioch  College,  126  111.  474,  18  N.  E. 
768,  9  Am.  St.  Rep.  638. 

*  The  notes  are  those  of  Williams. — Ed. 

1  The  reader  should  be  informed  that  this  assertion  is  grounded  only  on 
the  author's  researches.  The  general  opinion  appears  to  be  in  lavor  ot  the 
antinuit:^  of  contingent  remainders,  bioe  Third  Report  of  Real  Property  uom- 
mfssioners,  p.  'za;  i  i^teph.  <_om.  (.srn  Ed.)  615,  n.  (c).  And  an  atteuipt  to  cre- 
ate a  contingent  remainder  appears  in  an  undated  deed  in  Mad.  Form.  Angl. 
No.  535,  p.  305.  See,  too.  Bract,  fo.  13a ;  Fleta,  fo.  179 ;  Brittou  (Ed.  Nichols) 
i,  231  and  n.  (k),  and  Introd.  Ix-lxiii. 

2  Y.  B.  11  Hen.  IV,  74,  pi.  14,  in  which  case  a  remainder  to  the  right  heirs 
of  a  man  who  was  dead  before  the  remainder  was  limited  was  ht'ld  to  vest 
by  purchase  in  the  person  who  was  heir.  But  it  was  said  by  Ilankey,  J., 
that  if  a  gift  were  made  to  one  for  his  life,  with  remainder  to  tlie  right 
heirs  of  a  man  who  was  living,  the  remainder  would  be  void,  because  the  fee 
ought  to  pass  immediately  to  him  to  whom  it  was  limited.  Note,  also,  that 
in  Mandeville's  Case,  Co.  Litt.  26b,  which  is  an  ancient  case  of  the  heir  of 
the  body  taking  by  purchase,  the  ancestor  was  dead  at  the  time  of  the  gift. 
The  cases  of  rents  are  not  apposite,  as  a  diversity  was  long  taken  between 


42  CLASSIFICATION  OF   FUTURE   INTERESTS  (Part  1 

at  a  later  period,  the  authority  of  Littleton  is  express,^  that  every 
remainder,  which  beginneth  by  a  deed,  must  be  in  him  to  whom  it  is 
limited,  before  livery  of  seisin  is  made  to  him  who  is  to  have  the  im- 
mediate freehold.  It  appears,  however,  to  have  been  adjudged,  in 
the  reign  of  Henry  \  1,  that  it  land  5ti  given  10  a  man  fOl  liib  life, 
with  remainder  to  the  right  heirs  of  another  who  is  living,  and  who 
afterwards  dies,  and  tlien  the  tenant  tor  lite  dies,  the  heif  of  ttre 
stfgTT^^  shall  have  this  land ;  and  j^t  it  was  said  that,  at  the  time  of 
the  sfrant,  the  remainder  was  in  a  manner  void.'*  This  decision  ulti- 
mately  prevailed.  And  the  same  case  is  accordingly  put  by  Perkins, 
who  lays  it  down,  that  if  land  be  leased  to  A.  for  life,  the  remainder 
to  the  right  heirs  of  J.  S.,  who  is  alive  at  the  time  of  the  lease,  this 
remainder  is  good,  because  there  is  one  named  in  the  lease  (namely, 
A.  the  lessee  for  life),  who  may  take  immediately  in  the  beginning  of 
the  lease.^  This  appears  to  have  been  the  first  instance  in  which  a 
contingent  remainder  was  allowed.  In  this  case  J.  S.  takes  no  estate 
at  all ;  A.  has  a  life  interest ;  and,  so  long  as  J.  S.  is  living,  the  remain- 
der in  fee  does  not  vest  in  any  person  under  the  gift ;  for  the  maxim  is 
nemo  est  haeres  viventis,  and  J.  S.  being  alive,  there  is  no  such  person 
living  as  his  heir.  Here,  accordingly,  is  a  future  estate  which  will 
have  no  existence  until  the  decease  of  J.  S. ;  if,  however,  J.  S.  should 
die  in  the  lifetime  of  A.,  and  if  he  should  leave  an  heir,  such  heir  will 
then  acquire  a  vested  remainder  in  fee  simple,  expectant  on  A.'s  life 
interest.  But,  until  these  contingencies  happen  or  fail,  the  limitation 
to  the  right  heirs  of  J.  S.  confers  no  present  estate  on  any  one,  but 
merely  gives  rise  to  the  prospect  of  a  future  estate,  and  creates  an 
interest  of  that  kind  which  is  known  as  a  contingent  remainder.'^ 

a  grant  of  a  rent  and  a  conveyance  of  the  freehold.  The  decision  in  H.  7 
Hen.  IV,  6b,  pi.  2,  cited  in  Archer's  Case,  1  Rep.  66b,  was  on  a  case  of  a  rent 
charge.  The  authority  of  P.  11  Rich.  II,  Fitz.  Abr.  tit.  Detinue,  46,  which  is 
cited  in  Archer's  Case,  1  Rep.  67a,  and  in  Chudleighs  Case,  1  Rep.  135b,  as 
well  as  in  the  margin  of  Co.  Litt.  37Sa,  is  merely  a  statement  by  the  judge 
of  the  opinion  of  the  counsel  against  whom  the  decision  was  made.  It  runs 
as  follows: 

"Cherton  to  Rykhil — You  think  (vous  quides)  tliat  inasmuch  as  A.  S.  was 
living  at  the  time  of  the  remainder  being  limited,  that  if  he  was  dead  at  the 
time  of  the  remainder  falling  in,  and  had  a  right  heir  at  the  time  of  the 
remainder  falling  in,  that  the  remainder  would  be  good  enough?  Rykhil — 
Yes,  sir. — And  afterwards  in  Trinity  Term,  judgment  was  given  in  favour 
of  ^Yad  [the  opposite  counsel]:     quod  nota  bene." 

It  is  curious  that  so  much  pains  should  have  been  taken  by  modern 
lawyers  to  e.'cpTanr  tlie  reasons  whvji  reniinnder  tp  the  hjnrs  ot  a  pefsoir-who 
take5~rn''TTor'gyt7rfe^of  freeTYoTd~sIibunriiu.LluiyA;  beeirheldTo  be  a  coiftlhgent 
reiirrrrnTler  C^.v  T-V>al-iie,  "C  T^.'^?^^;  sq.),  wlien  the  construction  adopted  (subse- 
quenliy  cnlN d  tlic  nulc  in  s^lnnTpy^iPngp)  was  flpoirlefl  on  before  contingent 
remainders  xycrc  alluwiMj^. 

nCitt.  §  721.     8ee,  also,  M.  27  Hen.  VIII,  24a,  pi.  2. 

4  Year  Book,  9  Hen.  VI,  24a ;  H.  32  Hen.  VI,  Fitz.  Abr.  tit.  Feoffments  and 
Faits,  1)9. 

5  Perk.  §  .52. 

G  3  Rep.  20a,  in  Boraston's  Case.  Tlie  gift  to  the  heirs  of  J.  S^_has  been 
determined  to  be  sulhcient  to  confer  ah  estate' in  fee  simple  on  the  person 


Ch.  4)  CONTINGENT   REMAINDERS  43 

FEARNE'S  CONTINGENT  REMAINDERS,  Vol.  1,  pp.  3,  4: 
A  contingent  remainder  is  a  remainder  limited  so  as  to  depend  on  an 
event  or  condition,  which  may  never  happen  or  be  ijerformed,  or  which 
may  not  happen  or  be  periormed  till  after  the  determmation  of  the 
preceding  estate ;  for  if  the  preceding  estate  (unless  it  be  a  mere  trust 
estate)  determine  before  such  event  or  condition  happens,  the  remainder 
will  never  take  effect ;  as  will  appear,  when  I  come  to  treat  of  the 
time  when  a  contingent  remainder  is  to  vest. 


ID.,  p.  9,  Butler's  Note  (g) :  All  contingent  remainders  appear  to 
be  so  far  reducible  under  one  head,TlTat  they  depend  for  their  vesting  on 
the  happening  of  an  event,  which,  by  possibilitv.  may  not  happen  dur- 
ing jhe  continuance  of  the  preceding  estate,  or  at  the  instant  of  its 
determination.  ' 


LEAKE  ON  PROPERTY  IN  LAND  (2d  Ed.)  233 :  But  a  rennain- 
der  may  be  limited  to  a  person  not  yet  ascertained,  or  to  a  certain  per- 
son  uijon  a  cotTclition  precedent  which  may  liorliirpTJen  luitil  trfter-the 
determination  ofthe  particular  estate^  and  whilst  such  uncertainty 
lasts,  as  to  the  person  or  the  interest,  it  is  described  as  a  contingent 
remainder. 


ARCHER'S  CASE. 

(Court  ot  Queeu's  Bench,  1599.     1  Coke,  CGb.) 

Between  Baldwin  and  Smith,  in  the  Common  Pleas,  which  began 
Trin.  39  Eliz.  rot.  1676,  in  a  replevin,  upon  a  special  verdict,  the  case 
was  such :  Francis  Archer  was  seised  of  land  in  fee,  and  held  it  in 
socage,  and  by  his  will  in  writing  devised  the  land  to  Robert  Archer  the 
father,  for  his  liferaTid  afterwards  to  the  next  heir  male  of  Robert, 
and  to  the  heirs  male  of  the  body  of  such  next  heir  male;  K'fibprf  harl 
fssue  John,  Francis  died.  Robert  enfeoffed  Kent  with  warranty  upon 
whom  John  entered,  and  Kent  re-entered,  and  afterwards  Robert  died, 
&c.  At  first,  it  was  agreed  by  Anderson,  WalmsklKy  et  totam  cur', 
that  Robert  had  but  an  estate  for  life,  because  Robert  had  ^p  pvprpgg 
estate  for  life  devised  to  him,  and  the  remainder  is  limited  to  the  next 

who  may  be  his  heir,  without  any  additional  limitation  to  the  heh's  of  such 
lieir!  '!»  .larni.  Wills  (4tli  Ed.)  CI.  (i2.  If.  however,  the  trift  lu'  uia(Te~aTrT'r 
tITe~31st  of  Deoeinber,  is:;.".,  oi-  by  the  will  Of  a  testator  wlio  shall  have  dieiT 
after  that  day,  tiie  lano  win  ueseend.  on  the  decease  of  the  heir  "uTfestate. 
iKyTTo  his  heir,  but  to  the  next  heir  ol  .1.  >^..  in  the  same  manner  as  if  .1.  S. 
ball  been  tirst  entitled  to  the  estate.  Stal.  •'!  cV:  4  Will.  1\.  c.  lUi;.  §  4.  Jf  the 
hetl's  taKiii^"  as  imrcliasers  under  sucli  a  .!-'ift  he  female,  they  take  as  joiut 
t eulints,  and  not  li?^  conaiveiiois. — uweu  v.  uiuuums,  lyui',  1  CH.  ii^ii. 


44  CLASSIFICATION  OP  FUTURE  INTERESTS  (Part  1 

heir  male  of  Robert  in  the  singular  number ;  and  the  right  heir  male  of 
iTobert  cannot  enter  for  the  forfeiture  in  the  life  of  Robert,  for  he 
cannot  be  heir  as  long  as  Robert  lives.  Secondly,  that  the  remainder 
to  the  right  heir  male  of  Robert  is  good,  although  he  cannot  have  a 
rfght  heir  clurmg  nis  iitej_but  it  is  sufficient  that  the  remainder  vests 
eo  instanti  that  the  particular  estate  determines.  And  so  it  is  agreed 
in  /  Hen.  4,  b  h,  and  Cranmer's  Case,  14  Eliz.  Dyer  309  a.  Thirdly 
(which  was  the  principal  point  of  the  case),  it  was  agreed  per  totam 
cur',  that  by  the  feofl-ment  of  the  tenant  for  life,  the  remainder  was 
destroyed ;  for  every  contingent  remainder  ought  to  vest,  either  durmg 
the  particular  estate,  or  at  least  eo  instanti  that  it  determines;  for  if 
the  particular  estate  hf^  pnAaA^  nr  d^t^rminprl  ip  fact,  or  in  law,  before 
the  contingency  falls,  the  remainder  is  void.  And  in  this  case,  inas- 
much  as  by  the  feoffment  of  Robert,  his  estate  for  life  was  determined 
by  a  condition  in  law  annexed  to  it,  and  cannot  be  revived  afterwards 
by  any  possibility;  tor  this  reason  the  contingent  remainder  is  destroy- 
ed, against  the  opinion  ot  Gascoigne  m  /  Hen.  4,  'Z6  b.  Eut  it  the  ten-" 
ant  for  life  had  been  disseised,  and  died,  yet  the  remainder  is  good,  for 
there  the  particular  estate  doth  remain  in  right,  and  might  have  been 
revested,  as  it  is  said  in  32  Hen.  6.  But  it  is  otherwise  in  the  case  at  the 
bar,  for  by  his  feoffment  no  right  of  the  particular  estate  doth  remain. 
And  it  was  said  it  was  so  agreed  by  Popham,  Chief  Justice,  and  divers 
justices  in  the  argument  of  the  case  between  Dillon  and  Freine  [Chud- 
leigh's  Case,  1  Coke  120a,  ante,  p.  82,]  and  denied  by  none.  See  11 
R.  2,  tit.  Detinue,  46.  And  note  the  judgment  of  the  book,  and  the  rea- 
son thereof,  which  case  there  adjudged  is  a  stronger  case  than  the  case 
at  the  bar.  But  note,  reader,  that  after  the  feoffment,  the  estate  for  life 
to  some  purpose  had  continuance;  for  all  leases,  charges,  &c..  made  by 
the  tenant  for  life  shall  stand  during  his  lite,  but  the  estate  is  supposed 
to  continue  as  to  those  only  who  claim  by  the  tenant  for  life  before  the 


forteiture  •  but  as  to  Ml  Othel'iJ  who  do  not  claim  by  the  tenant  for  life 
himself,  the  particular  estate  is  determined :  and  by  the  better  opinion, 
the  warranty  shall  bind  the  remainder,  although  the  warranty  was  cre- 
ated bet  ore  the  remainder  attached  or  vested,  and  although  the  remain- 
der was  in  the  consideration  of  the  law,  and  he  who  shall  be  bound  by 
it,  never  could  have  avoided  it  by  entry,  or  otherwise;  yet  forasmuch 
as  the  remainder  did  commence,  and  had  its  being  by  force  of  the  de- 
vise, which  was  before  the  warranty;  for  this  reason  it  shall  bind  the 
remainder;  but  the  same  was  not  unanimously  agreed:  and  as  the 
feoffment  of  the  tenant  for  life  shall  destroy  the  remainder,  which  was 
in  consideration  of  law,  so,  et  a  fortiori,  the  warranty  of  his  ancestor 
(by  whom  he  is  intended  to  be  advanced)  shall  bind  him.  And  in  many 
cases  one  shall  be  bound,  and  barred  of  his  right  by  a  warranty,  who 
could  never  have  defeated  it  by  any  means,  as  in  44  Edw.  3,  30,  and  44 
Ass.  p.  35.  Lessee  for  life  is  disseised,  to  whom  a  collateral  ancestor 
of  the  lessor  releaseth,  and  dieth,  he  shall  be  barred.    Vide  3  Hen.  7,  9 


Ch.  4)  CONTINGENT  REMAINDERS  45 

a,  and  33  Hen.  8,  Br.  Guarantee,  84,  a  feme  covert,  who  cannot  enter 
nor  avoid  the  warranty,  shall  be  barred.  So  if  tenant  for  life,  the  re- 
mainder to  the  right  heirs  of  J.  S.,  had  been  disseised,  and  the  disseisor 
had  levied  a  fine  at  the  common  law,  the  right  heir  of  J.  S.  shall  be 
bound,  and  yet  he  could  not  enter  nor  make  claim.  But  the  point  ad- 
judged  was,  that  by  the  feoffment  of  the  tenant  for  life,  the  reiiiainder 
was  destroyed.' 

■^  See,  also,  the  following  Americnn  cases,  where  the  life  estate  was  pre- 
maturely terminated  b.v  a  tortious  feofFmentinade  or  common  recovery  suf- 
fefedby  the  TiTo  tCTlMiir.  and  wliore  In  consefpiotiw  tile  contingent  remaiiider 
war  destroyed: — WaTTTToll  \.  Kalluw,  b  Itawlo  (i'a)  i*:jl;  ^tump  v.  FindlayT  2 
RawIeTnrri^S,  10  Am.  Dec.  U32 ;  Lyle  v.  Kichards,  9  Serg.  &  R.  (Pa.)  322 ; 
Abbott  V.  Jenkins,  10  Serg.  &  R.  (Pa.)  296 ;  Redfern  v.  INIiddletou's  Ex'rs,  Rice 
(S.  C.)  459 ;    Faber  v.  Police,  10  S.  C.  376 ;    McElwee  v.  Wheeler,  10  S.  C.  392. 

In  Bennett  v.  Morris,  5  Rawle  (Pa.)  9,  a  remainder  similar  to  that  in 
Archer's  Case  was  held  contingent  and  destructible.  As  to  the  character  of 
remainders  to  the  heirs  of  a  living  person  and  the  destructibility  of  such  re- 
mainders, see  the  following:  Williams,  Real  Prop.  (17th  Ed.)  411,  notes  (d)  and 
(8);  Digby,  Hist,  of  the  Law  of  Real  Prop.  (4th  P:d.)  264-269  (translating  case 
from  Year  Books  antedating  156S) ;  Fearue,  Contingent  Remainders,  9;  Chal- 
lis,  Real  Prop.  (2d  Ed.)  120;  Boraston's  Case,  3  Co.  19b;  Irvine  v.  Newlin, 
63  Miss.  192.  See.  also,  Bailey  v.  Morris,  4  Ves.  Jr.  788;  Frogmortou  v. 
Wharrey,  2  Wm.  Black.  Rep.  72S ;  Mudge  v.  Hammill,  21  R.  I.  283,  43  Atl. 
544,  79  Am.  St.  Rep.  802;  Hanna  v.  Hawes,  45  Iowa,  437,  440;  Thurston  v. 
Thurston,  6  R.  I.  296,  300;  Jarvis  v.  Wyatt,  11  N.  C.  227;  Lemacks  v. 
Glover,  1  Rich.  Eq.  (S.  C.)  141;  Tucker  v.  Adams,  14  Ga.  548;  Sharman  v. 
Jackson,  30  Ga.  224;  Johnson  v.  Jacob,  74  Ky.  (11  Bush)  646;  Hall  v.  La 
France  Fire  Engine  Co.,  158  N.  Y.  570,  53  N.  E.  513;  ^IcCampbell  v.  Mason, 
151  111.  500,  38  N.  E.  672 ;  JFAna  Life  Ins.  Co.  v.  Hoppin,  249  111.  406.  94  N. 
E.  669 ;  .aitna  Life  Ins.  Co.  v.  Hoppin,  214  Fed.  928,  131  C.  C.  A.  224,  post, 
p.  136. 

Gray's  Rule  against  Perpetuities  (3d  Ed.)  §  921:    "And  this  doctrine  has  

been   repeatedly   laid  down   and  followed,   as   by   Lord  Northington   in   Car-    C>w^>t*-J    £i-y 
wardine  v.  Carwardine,  1  Eden,  27,  34,  where  he  says:     'It  is  a  certain  prin-   ru.^        y 
ciple  of  law,  that  wherever  such  a  construction  can  be  put  upon  a  limitation.     ^■*'^»-*-w» ^-v 
as  that  it  may  take'~etl:cct  py  way  or  remainder,  it  sbp11  npvpv  tnke  ulacoiig    ruUG^    fCi^   c^ 
a   springing  use  t)^  ^-^^5"^^^o''y    deyjse ;'     by   Lord   Mansfield   in   Goodtifle"^    ^        ■       ^^   ^  *! 
Biilington,  Dougl.  Too,  708;    by  ix)rd  Kenyon  in  Doe  d.  Mussell  v.  JSIorgan,  3      '^■*'"^-»-t     ^  ^     J 
T.  R.  763,  765,  where  he  says:     'If  ever  there  existed  a  rule  respecting  ex-    /        w'    ^        ^' 
ecutory  devises  which  has  uniformly  prevailed  without  any  exception  to  the   ^^*2llZ—X.  ^^"-^  ^Y^*^ 
contrai'y,  it  is  that  which  was  laid  down  by  Lord  Hale;'     by  Lord  Ellen- 
borough,  in  Doe  d.  Scott  v.  Roach,  5  M.  &  S.  482,  491,  492,  where  he  says:        ■ 
'As  circumstances  stood   when  the  will   was  made   the  limitation  to  Mary 
Dennett's  children  must  have  been  construed  a  contingent  remainder,  not  be- 
cause the  testatrix  meant  it  to  operate  in  that  particular  mode,  that  is,  by 
contingent  remainder,  nor  because  her  intention  would  be  most  effectually 
carried  into  effect  by  treating  it  as  a  contingent  remainder,  but  because  it  is 
a  rule  of  law  that  no  limitation  shall  operate  by  way  of  executory  devise, 
which,  at  the  time  of  the  testator's  death,  was  capable  of  operating  by  way 
of  contingent  remainder ;'     by  the  Court  of  Common  Pleas  in  Doe  d.  Planner 
V.  Scudamore,  2  B.  &  P.  289,  296,  297,  298 ;    and  by  the  Court  of  King's  Bench 
in  Doe  d.  Herbert  v.  Selby,  2  B.  &  C.  926,  930.     And  Lord  St.  Leonards  in 
Cole  V.  Sewell,  4  D.  <&  War.  1,  27,  says:     'Now,  if  there  be  one  rule  of  law 
more  sacred  than  another,  it  is  this,  that  no  UWirflliaH  Mtlilll  IH4  ('liiimtiiii'il   \\\ 
bp~f,ii  t\\(MMit()rv  or  sldllilig  use,  wiucii  can  by  jinssiliilitv  fiilfn  ■^"""••f  by  \^in y 
ol,rein:iiu(lcr-7 — STC  Pi'.tiuii.  (T  R.  ..M-.,'jn:    MbillTTExec.  Int.  71,  72;    Tbeob. 
Wills  (7th  Ed.)  649;    Wms.  Real  Prop.  (22d  Ed.)  386;    21  Law  Quart.  Rev. 
129.     See  also  Burleigh  v.  Clough,  52  N.  H.  267,  273,  13  Am.  Rep.  23;    Hay- 
ward  V.  Spaulding,  75  N.  H.  92,  71  Atl.  219." 


46  CLASSIFICATION   OF   FUTURE   INTERESTS  (Part   1 

JOSHUA  WILLIAMS,  ON  THE  ORIGIN  OF  THE  PRESENT 
MODE  OF  FAMILY  SETTLEMENTS  OF  LANDED  PROPER- 
TY, 1  Juridical  Society's  Papers,  45,  53 :    Chudleigh's  case  was  argued 
/,'«.-yiJX,   ^'  in  thr  ihth  3-f  ii  iif  lln    iri;^n  nf  Qurrn  EliraKrth  (1  Rep.  121a);  and  in 

the  39th  and  40th  years  of  that  reign  the  doctrine  there  laid  down  was 
conhrmed  by  the  decision  of  Archer's  case  (1  Rep,  bbb),  ni  which  a  teir^ 


i-Ti, 


'""^'^  •  anF  tor  lite  w^as  held  to  have  desinoved  by  his  feoffment  a  contingent 
remainderto  the  next  heir  male  of  aperson  then  living!  However; 
notwithstanding  these  decisions,  limitations  to  the  use  ot~"unborn  first 
and  other  sons  successively  in  tail  appear  to  have  continued,  of  which 
an  example  may  be  seen  in  a  settlement  dated  the  20th  March,  3  Jac. 
1  (Harleian  Charter,  83  H.  20),  w'here  limitations  occur  to  the  use  of 
the  first  male  child  begotten  of  the  bodies  of  the  husband  and  wife  in 
tail,  with  remainder  to  the  use  of  the  second,  and  so  on  down  to  the 
fifth,  followed  by  similar  limitations  to  the  use  of  the  first  female  child 
in  tail,  with  remainder  to  the  others  down  to  the  sixth.  It  was  evident, 
however,  that,  whilst  these  contingent  remainders  to  unborn  children 
were  liable  to  be  destroyed  by  the  feoffment  of  the  tenant  for  life,  there 
was  very  little  certainty  in  a  settlement  thus  made,  and  a  plan  was  ac- 
cordingly devised  for  giying  the  free  hold  to  trustees  during  the  lite  of 
the^atner  upon  trust  to  preserve  the  contingent  remainders  to  his  chil- 
dren.  It  is  said  by  counsel  in  the  argument  of  the  case  of  Garth  v. 
Sir  John  Hind  Cotton  (1  Ves.  Sen.  524),  that  this  plan  was  invented  by 
Lord  Keeper  Bridgman ;  and  Lord  Hardwicke,  in  his  judgment  in  the 
/^♦f^cxxce^  same  case,  A.  D.  1750,  states,  that  the  invention  of  trustees  to  preserve 

contingent  remainders  was  then  about  100  years  since ;  and  he  subse- 
quently states,  that  the  limitation  to  trustees  to  preserve  contingent  re- 
mainders took  its  rise  from  the  determination  of  two  great  cases, 
Chudleigh's  case  and  Archer's  case,  though  it  was  several  years  after 
those  resolutions  before  that  light  was  struck  out,  and  it  was  not 
brought  into  practice  amongst  conveyancers  till  the  time  of  the  Usurpa- 
tion; when  probably  the  providing  against  forfeitures  for  what  was 
then  called  treason,  and  delinquency  w.ns  an  additional  motive  tn  it. 
(1  Dicl<ens,  191.)  There  can  be  little  doubt  that  these  statements  are 
correct,  and  that  Sir  Orlando  Bridgman,  afterwards  Lorrl  Kee])er  \y[T(^ 
may  be  called  the  father  of  modern  conveyancing,  was  in  fact  the  in- 
ventor ot  tne  method  so  long  m  use  for  preserving  contin^ip-ent  remain- 
(iers  by  means  of  a  limitation  to  trustees  for  that  purpose. 


Ch.  4)  CONTINGENT   REMAINDERS  47 

VAIZEY,  LAW  OF  SETTLEMENTS,  1161,  1162:  Immediately 
after  the  limitation  of  the  particular  estate,  upon  the  determination  of 
which  the  contingent  remainder  was  expectant,  and  before  the  limita- 
tion of  that  remainder,  a  limitation  was  inserted,  of  which  the  follow- 
ing is  an  example : 

And  from  and  after  the  determination  of  the  said  estate  so  lim- 

~  . 

ited  to  the  said  [tenant  for  life]  as  aforesaid  by  forfeiture  or  oth- 
erwise  in  the  htctime  of  tlie  said  [tenant  for  life].    To  the  use"of 
the  said  [tenant  for  life].     Upon  trust  to  preserve  the  contingent 
u scs  and  estates  hereinafter  limited  from  bemg  deteated  or  de - 
stFoyed,  and  tor  that  purpose  to  make  entries  and  bring  actions 
as  occasion  shall  require,  but  nevertheless  to  permit  and  suffer  the 
said  [tenant  for  life]  and  liis  assigns  to  receive  the  rents,  issues 
and  profits  of  the  same  premises  for  his  and  their  own  use  during 
the  term  of  his  natural  life.     *     *     * 
By  a  variation  in  its  form  it  might  be  adapted  to  preserve  remainders 
dependent  on  contingencies  which  might  not  happen  during  the  contin- 
uance of  the  preceding  estate  for  life.    The  ordinary  use  of  the  limita- 
tion, however,  was  that  for  wdiich  in  the  above-cited  form  it  was  adapt- 
ed— the  preservation  of  remainders  which  could  only  fail  by  means  of 
the  destruction  as  distinguished  from  the  natural  determination  of  the 
preceding  estate. 


REEVE  V.  LONG. 

(King's  Bench  and  House  of  Lords,  1695.    3  Lev.  408.) 

Error  of  a  judgment  in  ejectment  in  C.  B.  affirmed  in  B.  R.  where 
on  a  special  verdict  in  ejectment  the  case  was  this.  John  Long  being 
seised  in  fee  devised  the  lands  in  question  to  Henry-  Long,  the  eldest 
son  of  his  brother  Richard,  for  life ;  the  remainder  to  his  first  son 
in  tail,  remainder  to  all  his  other  sons  in  the  same  manner,  remainder 
to  Richard  the  lessor  cf  the  plaintiff"  for  Ijie,  remainder  to  his  first 
and  all  his  other  sons  m  tailj  with  divers  remainders  over,  and  dies. 
Henry  enters  and  was  seised,  but  before  he  has  any  son  born  dies, 
leaving  his  wife  great  Avith  child.  Richard  the  lessor  enters  as  in  his 
remainder;  and  six  montlis  atter  the  defendant,  son  of  Henry,  is  born, 
and  his  guardian  enters  foi  him  upon  the  lessor,  who  thereupon  brings 
ejectment,  and  the  cause  being  tried  before  Turton,  Daron  of  the  Ex- 
chequer,  this  whole  matter  was  found  specially;  and  upon  argument 
m  C.  B.  judgment  was  by  the  whole  court  given  for  the  plaintiff"  for 
two  causes!  1.  I'or  that  this  being  a  contingent  remainder  to  tne  hrst 
son  of  Henry,  and  he  nor  being  1)orn  at  the  time  the  j^articular  estate 
determined,  it  became  voTcT  Z.  itie  next  in  remainder  being  the 
lessor,  and  he  having  entered  before  the  birth  of  the  first  son  of 
Henry,  he  was  in  by  purchase,  and  shall  not  be  evicted  by  an  heir  born 


48  CLASSIFICATION  OF  FUTURE  INTERESTS  (Part  1 

afterwards,  5  E,  4,  6;  9  11.  7,  5,  &c.,  whereupon  the  defendant  brought 
error  in  B.  R.,  where  the  iudgment  was  affirmed  by  the  whole  court; 
\vlTereupon  he  brings  error  in  Parliament  where  the  judgment  was 
reversed  by  almost  all  tlie  Lords  in  Parliament,  because  it  being  a  will 
tlipy  rnn<;trnpH  ]t  according  to  the  intent  and  equity  and  meaning  of 
the  parties,  which  they  said  could  never  be  to  disinherit  the  heir  of 
the  name  and  family  of  the  devisor,  nor  would  they  do  it  on  such  a 
nicety.  But  all  the  judges  were  much  dissatisfied  with  this  judgment 
of  the  Lords,  nor  did  they  change  their  opinions  thereupon,  but  very 
much  blamed  Baron  Turton  for  permitting  it  to  be  tound  speciaJJv 
where  the  law  was  so  clear  and  certam. 
Levinz  for  the  plaintiff  in  the  ejectment.* 

8  10  &  11  Wm.  Ill,  c.  16  (1699)— An  act  to  enable  posthumous  children  to 
take  estates  as  if  born  in  their  father's  lifetime.  Whereas  it  often  hai>l>ens, 
that  by  marriage  and  other  settlements,  estates  are  limited  in  remainder  to  the 
use  of  the  sons  and  daughters,  the  issue  of  such  marriage,  with  remainders 
over,  without  limiting  an  estate  to  trustees  to  presei've  the  contingent  I'e- 
mainders  limited  to  such  sons  and  daughters,  by  which  means  such  sons  and 
daughters,  if  they  happen  to  be  born  after  the  decease  of  their  father,  are 
in  danger  to  be  defeated  of  their  remainder  by  the  next  in  remainder  after 
them,  and  left  unprovided  for  by  such  settlements,  contrary  to  the  intent  of 
the  parties  that  made  those  settlements:  be  it  enacted  by  the  King's  most 
excellent  Majesty,  by  and  with  the  advice  and  consent  of  the  Lords  Spiritual 
and  Temporal,  and  Commons,  in  this  present  Parliament  assembled,  and  by 
the  authority  of  the  same,  That  W-here  any  estate  already  is  or  shall  here- 
after,  by  any  marriage  or  other  settlement,  be  limited  in  remainder  to.  or  to 
the  use  of  theTirstor  otherson  or  sons  of  the  body  of  any  person  lawfully 
begotten,  with  any  remainder"~or  remainders  over  to,  or  to  the  use  of  any 
other  person  or  persons,  or  in  remainder  to,  or  to  the  use  of  a  daughter  or 
daughters  lawfully  begotten,  with  any  remainder  or  remainders,  to  any  other 
person  or  persons,  that  any  sen  or  sons,  or  daugnter  or  daugtiters  ot  sucfi 
peTSon  or  persons  lawf\ill;^^J)ei^tten  or  to  be  begotten,  tnat  sliall  be  born  atter 
the  decease  ot  nis,  her  oi'  their  father,  shall  and  may,  by  vn-tue  ot  sucn  set- 
tfemeliL,  Luke  .such  estate  so  'llmltgd"  to  the  first  and  other  sons,  or  to  the 
daughter  or  daughters,  in  the  same  manner,  as  if  born  in  the  lifetime  of  his, 
her  or  their  father,  although  the;-e  shall  happen  no  estate  to  be  limited  to 
trustees,  after  tne  decease  of  the  father,  to  preserve  the  contingent  remainder 
to  such  afterborn  son  or  sons,  daughter  or  daughters,  until  he,  she  or  they 
come  in  esse,  or  are  born,  to  take  the  same;  any  law  or  usage  to  the  contrary 
in  any  wise  notwithstanding. 

II.  Provided  also.  That  nothing  in  this  Act  shall  extend  or  be  construed  to 
extend  to  divest  any  estate  in  remainder,  that  by  virtue  of  any  marriage  or 
other  settlement,  is  already  come  to  the  possession  of  any  person  or  persons, 
or  to  whom  any  right  is  accrued,  though  not  in  actual  possession,  by  reason 
or  means  of  any  afterborn  son  or  sons,  or  daughter  or  daughters  not  happen- 
ing to  be  born  in  the  lifetime  of  his,  her  or  their  father. 

"It  is  singular  that  this  Statute  does  not  expressly  mention  limitations  or 
devises  n<r,<]<^  hy  wills.  inerp  is  n  rrnmnnn  irmr  ns  fim  nngo  n\  ifoovo  V- 
Long  arose  upon  a  will,  the  Lords  considered  the  Inw  to  be  settled  by  thei r 
deTermination  in  tbat  case;  and  were  unwilling  to  make  any  express  rnention 
of  limTtations  or  devises  made  in  wiUs,  lest  it  should  appear  to  call  in  ques- 
tion the  authority  or  prOprK^tytrfttrgtrileternunatiun."— -i?»^Zcr'a  Note  to  (Jo. 
LifTYUEa.  ■ 


Ch.  4)  CONTINGENT  REMAINDERS  49 

IVcr.^  A  1  T^e)  <^r  I        c>^     ''  Cor,  cu  rr  tr,*~    ^o '\  *•' A^-^r^  ci C^ 

LODDINGTON  v.  KIME. 

(Court  of  King's  Bench,  1695.     1  Salk.  224.) 

In  replevin  a  special  verdict  was  found,  viz.,  That  Sir  Michael  Armin 
being  seised  in  fee,  devised  a  rent-charge,  and  then  devises  the  land  to 
A.  for  life  "without  impeachment  of  waste ;    and  in  case  he  have  any 
issue  male,  then  to  such  issue  male  and  his  heirs  forever;    and  if  he' 
die  without  issue  male,  then  to  B.  and  his  heirs  forever."    A.  entered 

and  suffered  a  common  recoverv',  and  died  without  issue.     *~" 

^__^_ M ' . — 

1st  question  was,  W'hether  A.  was  tenant  in  tail  by  this  devise?  Pow- 
ELL  held  the  express  estate  for  life  not  destroyed  by  the  implication  that 
arose  on  the  latter_words  followiooTso  that  A.  was  only  tenant  for 
life,  and  the  ratherTbecause  these  words,  viz.,  impeachment  of  waste, 
andTor  lite,  must  in  that  case  be  rejected,  quod  Trebv,  C.  J.,  conces- 
sit. 23Ty!  The  CouRTheld.  that  is^ue  was  to  be  taken  here  as  nomen 
singulare,  because  the  inheritance  was  annexed  and  limited  to  the  word 
issue ;  so  that  the  inheritance  was  in  the  issue,  and  not  in  A.  the  father. 
3dly.  That  this  liniitation  to  the  issue  was  not  an  executory  devise,  be-  /•  v  • 
ing  after  a  freehold,  but  a  contingent  remainder,  so  that  a  posthumous  <c-^  ^'/  ■j 
son  could  never  take.    4thly!     That  the  remainder  limited  to  the  issue  *^ 

ot  A.  was  a  confmgent  remainder  in  fee,  and  that  the  remainder  to  B. 
was  a  tee  also.  But  those  tees  are  not  like  one  fee  mounted  on  anothe r , 
nor  contrary  to  one  another,  but  two  concurrent  contingencies,  of 
which  either  is  to  start  according  as  it  happen^:  so  that  these  are  re- 
mainders contemporary  and  not  expectant  oneafter  another.  ,5thTy. 
The  Court  held  that  the  remainder  in  fee  to  B.  was  not  vested,  be-  ^ 
cause  the  precedent  limitation  to  the  issue  of  A.  was  a  contingent  fee :  ^-*-<-rr  '  '^  *^^  <^^/vO 
and  they  took  this  ditterence,  viz.,  Where  the  mesne  estates  limited 
are  for  life  or  in  tail,  the  last  remainder  may,  if  it  be  to  a  per.son 
in  esse,  vest ;  but  no  remainder  limited  after  a  limitation  in  fee,  can 
be  vested.  6thly.  That  the  recovery  suffered  bv  A.  had  barred  the 
estate  limited  to  his  issue,  that  being  contingent,  and  likewise  the  re- 
mainder limited  to  B.  and  his  heirs,  because  that  was  contingent,  not 
vested,  and  now  never  could  vest ;  and  that  A.  had  gained  a  tortious 
fee,  \vliich  would  be  good  against  B.  and  his  heirs,  and  likewise  against 
alFpersons  but  the  right  heirs  of  the  devisor. _ 

Nota. — In  the  report  of  this  case  in  3  Lev.  431,  it'is  said,  that  tlie 
Court  were  agreed  to  give  judgment  for  the  avowant  upon  the  point, 
that  A.  only  took  an  estate  for  life,  when  Powell,  J.,  started  the  other 
point,  whether  the  devise  over  to  B.  was  only  a  contingent  remain- 
der, or  an  executory  devise :  Upon  which  it  was  afterwards  twice 
argued;  but  that,  before  any  judgment  given,  the  parties  agreed  and 
divided  the  estate. 

4  Kales  Prop. — 1 

_V^ 7     - '-—    .     J 


50  CLASSIFICATION  OF  FUTURE   INTERESTS  (Part  1 

FESTING  V.  ALLEN. 

(Court  of  Exchequer,  1S43.    12  Mees.  &  W.  279.) 

RoLFE,  B.®  This  case,  sent  for  the  opinion  of  this  court  by  his 
Honor,  Vice-Chancellor  Wigram,  was  very  fully  argued  in  last  Easter 
and  Trinit}-  Terms.  The  authorities  cited  were  very  numerous,  and  it 
was  rather  from  a  desire  to  look  into  them  more  attentively  than  it 
was  possible  to  do  at  the  time  of  the  argument,  than  from  our  enter- 
taining much  doubt  in  the  case,  that  we  took  time  before  delivering 
our  judgment. 

The  question  for  our  opinion  arises  on  the  will  of  Roger  Belk, 
which,  so  far  as  it  is  material  to  state  it,  is  as  follows:  "I  give  and 
devise  unto  George  Allen,  Thomas  Youle,  and  John  Gillatt,  all  and 
every  my  messuages,  lands,  tenements,  and  hereditaments,  both  free- 
hold and  copyhold,  and  all  my  other  messuages,  lands,  tenements, 
hereditaments,  and  real  estate  whatsoever  and  wheresoever,  to  have 
r>v  and  to  hold  the  same  unto  the  said  George  Allen,  Thomas  Youle,  and 

U^ihOoh^-^»^   t»       John  Gillatt,  their  heirs  and  assigns,  to  the  uses,  upbfi'ahd  for  fhe 
i&^  ■  ffj"  tmstsT  intents,  and  purposes,  and  with,  undei,  and  subject  to  the  pow- 

'^""^  cTa,  provisions,  and  declarations  hereinafter  expressed  and  contained 

of  and  concerning  the  same;  ^**  viz.,  to  the  use  of  my  said  dear  wife 
and  her  assigns,  for  and  during  the  term  of  her  natural  hte,  it  she 
shall  so  long  continue  my  widow  and  unmarried,  without  impeachment 
of  waste;  and  from  and  after  her  decease  or  second  marriage,  which 
shall  first  happen,  to  the  use  of  my  said  granddaughter,  iMartha  Han- 
nah Johnson,  and  her  assigns,  for  and  during  the  term  of  her  natural 
liTe,  and  from  and  after  her  decease  to  the  use  of  all  and  every  the  child 
or  childreiT  ot  her,  tne  said  Martha  Hannah  Tohnson.  who  shall  at-~ 
tarn  the  age  ot  twenty-one  years,  if  more  than  one,  equally  to  be  divid- 
ed  amongst  them,  share  and  snare  alike,  to  hold  as  tenants  in  com- 
mon, and  not  as  joint  tenants,  and  to  their  several  and  respective  heirs 
and  assigns  forever,  and  if  but  one  such  child,  then  to  the  use  of  such 
'  one  child,  his  or  her  heirs  and  assigns  forever;    and  for  want  of  any 

such  issue,  then  it  is  my  will  and  mind,  and  I  do  hereby  direct,  that 
my  said  trustees,  and  the  survivor  of  tTiem,  and  the  heirs  and  assigns 
of  such  survivor,  do  and  shall  stand  seised  and  possessed  thereof,  in 
trust,  as_to  one  equal  half  part  or  share  thereof,  to  permit  and  suffer 
Ann  JoiinsonT^the  wite  ot  my  grandson  ThomasTvoger  ijelk  Johnson, 
or  any  otlier  wife  whom  he  may  happen  to  marry,  to  receive  and  take 
the  rents,  issues,  and  profits  thereof,  for  and  during  the  t6rffl~  of  her 
n atural  lite,  t'or  the  maintenance  and  education  ot  all  and  every  the 
ciiiTd   or  cnndrLii  of  iii)'   said  grandstTn  Tholius  Rugei    Delk  Julm- 

9  Only  the  opinion  is  here  Riven. 

1 "  The  rule  of  destrnctibility  of  contingent  remainders  could  not  be  in- 
vokt'd  \vn(M-('  the  interests  were  enultableT  Astley  v.  Micklethwait,  15  Ch, 
biv.  ,j\)  (lSf>{)). — ■ 


Ch.  4)  CONTINGENT   REMAINDERS  51 

son  [and  from  and  after  her  decease,  to  the  use  of  all  and  every  the 
c hild  and  children'^!  nTy  "said  gran dson,~Thomas  Kjj^^cr^Eelk  JoFnson^ 
lawfully  begotten,  who  shall  attain  the  age  of  twenty-one  yearsT^ 
more  than  one,  equally  to  be  divided  amongst  them,  share  and  share 
alike,  to  hold  as  tenants  in  common,  and  not  as  joint  tenants,  and  to 
their  several  and  respective  heirs  and  assigns  forever;  and  if  but  one 
such  child,  then  to  the  use  of  such  one  child,  his  or  her  heirs  and  as- 
signs forever.  And  as  to  the  other  equal  half  part  or  share_thereof. 
to  stand  seised  and  possessed  thereof  to  the  use  of  the  said  Sarah 
Rhodes,  for  and  during  the  term  of  her  natural  life,  and  from  and 
after  her  decease,  to  the  use  of  all  and  every  the  chiId~or"childrerTror 
the  said  Sarah  Rhodes,  lawfully  begotten,  who  shall  attain  the  age 
of  twenty-one  years,  if  more  than  one,  to  be  equally  divided  amongst 
chem,  share  and  share  alike,  to  hold  as  tenants  in  common  and  not 
as  joint  tenants,  and  to  their  several  respective  heirs  and  assigns 
forever." 

Martha  Hannah  Johnson  survived  the  testator's  wddow,  and  after 
his  death,  namely,  m  the  year  1825,  married  Maurice  Green  Festing. 
She  died  in  1833,  leaving  three  infant  children;  and  the  main  question 
is,  whether  those  children  took  on  her  death  any  interest  in  the  devised 
estates. 

W'e  think  that  they  did  not.  It  was  contended  on  their  behalf  that 
they  took  vested  estates  in  fee  immediately  on  the  death  of  their  moth- 
er~  subject  only  to  be  devested  in  the  e\ent  of  their  dying  under  twenty  - 
one,  and  the  case,  it  was  said,  must  be  treated  as  coming  within  the  prm- 
ciple  of  the  decision  of  the  House  of  Lords  in  Phipps  v.  Ackers,  3  CI. 
&  Fin.  703,  and  the  cases  there  referred  to.  To  this,  however,  we 
cannot  accede.  -In  all  those  cases  there  was  an  absolute  gift  to  some 
ascertamed  person  or  persons,  and  the  courts  held,  that  words  accom- 
panying the  gift,  though  apparently  importing  a  contingency  or  con- 
tingencies, did  in  reality  only  indicate  certain  circumstances  on  the 
happening  or  not  happening  of  which  the  estate  previously  devised 
should  be  devested,  and  pass  from  the  first  devisee  into  some  other 
channel.    The  clear  distinction  in  the  present  case  is,  that  here  there  is 

no   pit   t'^   nny   "^"^   •"•^'■"'   '"''""^=   ""^   nnnvpr   tlip  nrlmlp   r>f   tliP    rPr jin-^i'tP    Hp- 

scription.  The  gift  is  not  to  the  children  of  Mrs.  Festing.  but  to  the 
children  who  shall  attain  twenty-one,  and  no  one  who  has  not  attained 
his  age  of  twenty-one  years  is  an  object  of  the  testator's  bounty, 
anyniore  than  a  person  who  is  not  a  child  nf  Afr^.  I^Vsfirip^  Lven  it 
there  were  no  authority  establishing  this  to  be  a  substantial  and  not 
an  imaginary  distinction,  still  we  should  not  feel  inclined  to  extend  the 
doctrine  of  Doe  v.  Moore,  14  East,  601,  and  Phipps  v.  Ackers  to  cases 
not  precisely  similar.  But,  in  fact,  the  distinction  to  which  we  have 
adverted  in  a  great  measure  forms  the  ground  of  the  decision  in  the 
case  of  Duffield  v.  Duffield,  3  Bligh,  N.  S.  20,  in  the  House  of  Lords, 
and  Russell  v.  Buchanan,  2  C.  &  M.  561,  in  this  court;    and  on  this 


52  CLASSIFICATION   OP  FUTURE   INTERESTS  (Part  1 

short  ground  our  opinion  is  founded.  We  think  that  Mrs.  Festing  was 
tenant  for  hfe,  with  contingent  remainders  in  fee  to  such  ot  her  chiP 
dfgn  as  should  attain  twenty-one ;  and  as  no  child  had  attained 
twenty-one  when  the  ])articular  estate  determined  hv  her  death,  the 
remamder  was  necessarily  defeated.  It  is  equally  clear  that  all  the 
other  limitations  were  defeated  by  the  same  event,  namely  the  dcatH 
of  ]\Irs.  Festing  leaving;-  several  infant  children,  but  no  child  who  had 
then  attained  the  a^e  of  twenty-one  years.  For  the  limitations  to  take 
effect  at  her  decease  were  all  of  them  contingent  remainders  in  fee,  one 
or  other  of  which  was  to  take  effect  according  to  the  events  pointed  out. 
If  Mrs.  Festing  had  left  at  her  decease  a  child  who  had  then  attained 
the  age  of  twenty-one  years,  her  child  or  children  would  have  taken 
absolutely,  to  the  exclusion  of  all  the  other  contingent  remainder-men. 
If  on  the  other  hand,  there  had  at  her  decease  been  a  failure  of  her 
child  or  children  who  should  attain  twenty-one,  then  the  alternative 
limitations  would  have  taken  effect;  but  this  did  not  happen,  for 
though  she  left  no  child  of  the  age  of  twenty-one  years,  and  there- 
fore  capable  ot  "takmg  under  tne  devise  in  favor  ot  her  children, 
yet  neither  is  it  possible  to  say  that  there  was"  at  her  decease  a  failure 
of  her  issue  who  should  attain  the  age  oftwenty-one  years7jor_sKe 
left  three  children,~all  or  any  ot  whom  mTght  and  still  may  attain  the 
prescribed  age ;  so  that  the  contingency  on~wHich  alone~the  alternative 
limitationswere  to  take  effect  had  not  Happened  when__th£  particiilar 
estate  deternimed,  and  those  alternative  limitations,  all  of  which  were 
contingent   remainders,   were   therefore  "defeated^      On^liese 


short  grounds,  we  thinlc  it  clear,  that  neither  the  infant  children  of 
Mrs.  Festing,  nor  the  parties  who  were  to  take  the  estate  in  case  of 
her  leaving  no  child  who  should  attain  twenty-one,  take  any  interest 
whatever,  but  that  on  her  death  the  whole  estate  and  interest  vested  in 
the  heir-at-law. 

We  shall  certify  our  opinion  to  Vice-Chancellor  Wigram  accord- 
ingly/^ 

11  Accord:  Bull  v,  Pritchard,  5  Hare,  567  (1S47) ;  Holmes  v.  Prescott,  .3.3  L. 
J.  Ch.  2G4  (1864) ;  Rhodes  v.  Whitehead,  2  Dr.  &  Sm.  532  (1S65) ;  Cunliffe  v. 
P.raiicker,  3  Ch.  Div.  393  (1876);  Irvine  v.  Newlin,  63  ISIiss.  192.  Coutra: 
Browne  v.  Browne,  3  Sm.  &  G.  568  (1857). 


Ch.  4)  CONTINGENT   REMAINDERS  53 

EGERTON  V.  MASSEY. 

(Court  of  Common  Pleas,  1857.    3  C.  B.  [N.  S.]  338.) 

CocKBURN,  C.  J.^^  I  am  of  opinion  that  the  defendants  are  entitled 
to  the  judgment  of  the  court.  The  action  is  brought  to  try  the  right 
to  property  devised  by  the  will  of  one  Elizabeth  Cdover,  who  died 
seised  in  fee-simple.  The  devise  was  to  the  testatrix's  niece  Eunice 
Highfield,  for  life,  with  remaincler  to  her  children  in  such  shares  as  she 
should  appoint,  with  remainder,  in  default  of  issue  of  Eunice,  to  her 
nephew,  Peter  Highfield,  in  fee.  And  the  will  contained  a  residuary 
clause,  whereby  the  testatrix  gave  and  bequeathed  all  the  residue  and 
remainder  of  her  estate  and  effects,  wdiatsoever  and"  wheresoever,  not 
thereinbefore  disposed  of,  unto  her  said  niece  Eunice  Highfield,  her 
heirs  and  assigns  forever.  It  appears  that,  after  the  death  of  the 
testatrix,  iiunice  Highfield  by  lease  and  release  of  the  1st  and  2d  of 
October,  1832,  conveyed  the  premises  in  question  to  one  Peter  Jacksqn. 
in  fee;  and  the  question  is,  whether  that  is  a  valid  conveyance,  or 
whether  the  testatrix's  nephew  Peter  Highfield, — Eunice  Highfield, 
the  tenant  for  life,  having  died  without  issue, — became  entitled  to 
the  estate.  That  question  turns  upon  whether  b}'-  the  conveyance  to 
Jackson  the  life-estate  of  Eunice  Highfield  became  merged  in  the  re\er-  ' 

sToh,  so  that,  by  the  failure  of  the  particular  estate  upon  which  the 
contingent  remamder  of  Peter  PJighfield  depended,  the  rontinp;-ent  "re- 
mainder was  destroyed.    1  am  of  opinion  that  that  is  the  true  state  of 

things.    The  testatrix  first  creates  a  life  estate  in  Eunice  Highfield,  and  ^\__^^^^^^  c^^^^/x-ty^  " 
then  gives  a  contingent  remainder  to  Peter  Highfield,  leaving  the  ^^"'<r.^__tu^  r    7^    ru^'K^ 
version  in  fee  undisposed  of,  except  for  the  residuar}"  clause.     It  is         -^    ^   ^ 
clear  that  the  fee  thus  undisposed  of  must  have  remained  somewhere,  i 

and  that  it  was  not  the  mere  shadowy  interest  which  Mr.  Shapter  by 
his  very  ingenious  argument  sought  to  persuade  us.  The  fee,  then, 
being  somewhere,  what  would  become  of  it?  If  it  had  remained 
undisposed  of,  it  would  have  gone  to  the  heir-at-law  of  the  testatrix. 
But  we  find  that  tlie  testatrix  by  the  residuary  clause  professes  to  dis- 
pose  of  it;  for  she  tliereby  gives  all  the  residue  and  remainder  of  her 
estate  not  before  disposed  of,  to  her  niece,  in  fee.  If,  therefore,  the 
fee  did  not  pass — as,  I  think,  it  did  not — by  tlie  creation  of  the  con- 
tingent estate,  then  it  would  appear  to  follow  that  it  must  be  included 
in  the  residuary  devise,  the  words  of  which  are  large  enough  to  em- 
brace  it;  and,  that  being  so,  the  ettect  ot  the  conveyance  ot  i'661  was, 
to~~pass  not  only  the  life  estate,  but  also  the  reversion,  and,  by  tlie  ^^  i^iZo-  '^  Aetx^^ 
merger  ot  the  particular  esiaie,  on  which  the  contingent  remainder 
depended,  in  tne  reversion,  to  destroy  the  contingent  remainder.  The 
only  difficulty  suggested  upon  this  was,  whether  an  estate  of  this  kind 
must  not  be  made  the  subject  of  a  specific  devise.    No  authority,  how- 

12  The  opinions  only  are  here  given. 


54  CLASSIFICATION  OF   FUTURE   INTERESTS  (Part  1 

ever,  was  cited  for  that  proposition:  and,  prima  facie,  and  upon  the 
reason  of  the  thing,  if  a  testator  leaves  the  fee  undisposed  of  by  the 
earher  part  of  his  will,  and  by  a  residuary  clause  professes  to  deal 
with  "all  the  residue  and  remainder  of  his  estate  and  effects  what- 
soever and  wheresoever,  not  thereinbefore  disposed  of,"  it  follows  as  of 
course  that  the  fee  passes  by  that.  It  was  said,  that,  although  this 
would  be  so  as  to  personalty,  a  different  rule  prevails  as  to  realty ;  but 
no  authority  was  cited  in  confinnation  of  that  view :  and  we  have  the 
authority  of  two  very  eminent  conveyancers, — ^Ir.  Preston  and  Mr. 
Hayes, — who  seem  to  take  it  for  granted  that  all  estates  previously  un- 
disposed of  by  the  will  pass  by  the  residuary  clause.  I  am  therefore  of 
opinion,  that,  there  being  this  estate  of  fee  in  the  testatrix,  which,  unless 
disposed  of,  would  ^i^rv^ljia-'^'^'^d  t*^  ^""^^  ]'ifi''-^^'-^^''^'i  and  she  having  dis~ 
posed  of  it  by  the  residuary  clause  in  terms  capable  of  passing  it,  ami 
the  estate  tor  lite  and  the  reversion  in  fee  being  thus  united  in  Eunice 
Highfield,  and  she  having  conveyed  the  whole  of  her  interest  to 
Peter  Jackson,  the  particular  estate  became  merged  in  the  fee,  and 
the  contingent  remainder  in  favor  ot  l^eter  Highfield  was  consequent- 
ly destroyed,  l^or  these  reasons  i  think  there  must  be  judgment  for 
the  defendants. 

Williams,  J.  I  am  entirely  of  the  same  opinion.  The  learned  coun- 
sel who  argued  for  the  plaintiffs  rested  his  case  upon  the  position  Ihat 
the  residuary  clause  m  the  will  could  not  operate  as  a  devise  of  the 
reversion  in  fee,  because  it  would  be  a  violation  ot  the  ruIe~of  law 
tliat  a  tee  cannot  be  limited  on  a  fee^  The  obvious  meaning  ot  that  is," 
that,  where  an  estate  is  so  devised  that  the  fee,  whether  absolute  or 
deterrninable.  is  vested  in  the  first  taker,  the  subsequent  dispositions 
c a nnot  be  good  by  wav  of  remainder,  but  must  operate  by  way  of  exe c - 
utory_  devise.  And  that  is  reasonable,  because,  the  fee  having  been 
given  and  passed  by  the  first  devise,  there  is  nothing  further  for  the 
subsequent  limitations  to  operate  upon.  But  that  rule  is  wholly  inap-' 
plicable  to  a  case  like  this,  where  all  is  in  contingency,  and  the  fee 
is  outstanding.  If  the  fee  be  outstanding,  where  is  it?  It  is  clear  that 
the  notion  of  the  fee  being  in  abeyance  cannot  now^  be  sustained : 
see~Turetoy  v.  Rogers,  Z  Wms.  bau'nd.  380,  2  LFv.  39,  3  Kebie,  1 1 ; 
Plunkett  V.  Holmes,  1  Lev.  11,  1  Sid.  47,  T.  Raym.  28;  Carter  v. 
Barnardiston,  1  P.  Wms.  511;  but  the  fee  descends  to  the  heir-at- 
law,  to  let  in  the  contingency  if  it  happens,  i  think  it  is  clear,  that,  if 
!J#-u)  ^  '^-^A^*<K/\j  the  will  had  contained  no  residuary  clause,  the  fee  would  have  de- 

<^Cu<.»      i,<t-4-<    'C  scended  to  the  heir-at^law.    The  question,  then,  resolves  itself  intoTHI?, 

/u«^,^'        i<-  iC*t'  whether  the  residuary  clause  passes  this  reversion  in  fee,  which  but 

"^^  for  such  residuary  clause  would  teve'descended  to  the  heir-at-law. 

Some'lDassages  have  bcenTited  "from  the  works  of  two  very  eminent 
conveyancers,  which  treat  it  as  quite  plain  that  such  an  estate  would 
pass  by  a  residuary  clause.  The  estate  for  life  did  not  merge  in  the 
fee  so  long  as  both  remained  in  the  deviscg :   Jjut  they  both  became 


Ch.  4)  CONTINGENT  REMAINDERS  55 

united  by  the  conveyance  to  Peter  Jackson.    I  therefore  think  the  de- 
fendant  is  entitled  to  our  judgment. 

The  rest  of  the  court  concurring. 

Judgment  for  the  defendants. ^^ 


MOOT  CASE. 

X.  devised  Blackacre  to  A.  (a  bachelor)  for  life,  and  then_to  A.'s 
children  in  fee ;  "but  if  A.  dies  without  leaving  anv  children  who  sliall 
attam  twenty-one,  then  to  B.  in  fee."  A.  was  X.'s  only  heir  at  law. 
lie, married  after  X.'s  death  and  died  intestate,  leaving  him  surviving 
one  child,  M.,  who  was  A.'s  only  heir  at  law!  M.  died  intestate  betore 
reaching  the  age  of  twenty-one,  leaving  X.  his  only  heir  at  law.  In 
ejectment,  IJ.  claims  against  N.  ~ 

Kalks  (amicus  curiae),  li.  is  entitled  to  recover.  In  all  the  cases  of 
contingent  remainders  which  have  been  held  destructible  we  have  had 
presented  a  situation  where  the  future  interest  after  a  freehold  was 
limited  upon  an  event  which  might  happen  before  or  at  the  time  of 

13  See  Perceval  v,  Perceval,  L.  R.  9  Eq.  386  (1870),  where  It  was  held  that, 
where  ccmtuigeiit  remainders  were  destroyed  by  the  failure  of  the  remainder- 
inan  to  reach  a  certain  age  before  the  termiuatiou  of  the  life  estate,  the  re- 
siduary devise  vested  the  fee  in  the  residuarj-  devisee. 

In  the  following  American  cases,  the  contingent  remainder  was  destroyed  by 
the  termination  l)y  nTei'.Uor  of  lllc  life  estate  before  the  contingent  remainder 
was  rean\  lii  lake  elTec't  in  lios^^sjuir.  Craig  v.  Warner,  5  ^fftrckey  (Hj 
D.  C.)  4G0.  GO  Am.  Rep.  381  (reversion  conveyed  to  life  tenant) ;  Bennett 
V.  Morris,  5  Rawle  (Pa.)  8;  Bond  v.  Moore,  236  111.  576,  86  N.  E.  386, 
19  L.  R.  A.  (X.  S.)  .540;  Belding  v.  Parsons,  258  111.  422,  101  N.  E.  570 
(life  estate  and  reversion  conveyed  to  a  third  party) ;  Barr  v.  Gardner,  259 
ill.  256,  102  X.  E.  287  (reversion  conveyed  to  life  tenant  in  one  parcel  and 
life  tenant  conveyed  to  reversioner  in  another).  Frazer  v.  Board  of  Super- 
visors, 74  111.  282,  must  be  distinguished  on  the  ground  that  the  contingent 
remainder  there  involved  was  treated  by  the  Statute  on  Entails. 
.  Where  the  life  tenant  took  a  life  estate  under  a  will  and  at  once  upon  the 
death"  ot  the  testator  hecanie  invested  with  the  reversion  Tir~Tee  ijy  descent 
peiiding  tlie  taking  eliect  i>t"  the  contingent  reniaiiitler.  there  was  no  inerL^'r 
of  the  lite  estare  and  tlie  reversjiin:  rmnKet  v.  Ilohiies.  1  Lev.  11  (semble)  ; 
ChaFIis,  Ke:ll  Proj)."  {2d  Ed.)  12(1 :  Fearne,  C.  R.,  341  et  so*] ;  3  Preston  on 
Conveyancing  (3d  Ed.)  51,  38s.  491.  See,  also,  Kellett  v.  Shepard,  139  111. 
433,  2.S  N.  E.  751,  34  N.  E.  254.  In  such  cases  the  merger  occurred  only 
when  the  one  who  was  both  life  tenant  ancT  ie\ei lienor  conveyed  to^STTPtrU 
pa'j'l^  LioLk  the  liL'tJ  ealate  and  the  le^ei'StunT  l^gerton  v.  -Mas.sey,  3  C.  B.  J^. 
S.  338,  supfii; — BwilH'LL  V.  ^t(>Fris,  supra;  Bond  v.  Moore,  supra ;  Beldr 
Ing  V.  Parsons,  supra ;    3  Preston  on  Conveyancing  (3d  Ed.)  489. 

But  see  Dennett  v.  Dennett,  40  N.  H.  498,  and  McCreary  v.  Coggeshall,  74 
S.  C.  42,  53  S.  E.  978,  7  L.  R.  A.  (N.  S.)  433,  7  Ann.  Cas.  693. 

^^^lere  an  iindivided  liart  of  the  reversion  is  conveyed  to  the  life  tenant 
a  merger  occurs,  and  the  contingent  remainder  is  destroyed  to  the  extent  of 
the  interest  held  in  reversion  and  ctmwyed  to  the  life  tenant.  Oump  v. 
Norwood.  7  Taunt.  362;  Fearne,  C.  R.,  310;  Craig  v.  Warner,  5  Mackey  (16 
D.  C.)  460,  60  Am.  Rep.  381.  See,  also,  3  Preston  on  Conveyancing,  89; 
Westcott's  Case,  3  Co.  2,  60. 

An  executory  devise  does  not  mcrprp  jp  t^^,  fap  nUQn^  which  it  is  limited, 
though  they  l>elong  to  the  same  Person.     Goodtitle  vr"\N  nite,   lo  East,  174 


56  CLASSIFICATION  OF   FUTURE  INTERESTS  (Part  1 

the  termination  of  the  particular  estate,  or  afterwards.  In  the  former 
case  the  future  interest  took  effect  as  a  common-law  remainder,  with- 
out any  gap  between  the  termination  of  the  particular  estate  limited 
and  the  contingent  interest  expressly  limited.  If  the  event  happened 
after  the  termination  of  the  particular  estate,  and  the  future  interest 
still  took  effect,  it  would  do  so  after  a  gap  and  by  a  process  of  cutting 
short  the  reversion  in  fee  which  would  have  vested  in  possession  be- 
tween the  time  the  life  estate  terminated  and  the  time  the  future  inter- 
est expressly  limited  was  ready  to  take  effect  in  possession. 

In  thecaseat  bar  the  future  interest  in  B.,  when  created,  is  limited 
upon  an  event  which  may  happen  at  the  very  time  when  A.'s  life  es- 
tatelermiiiates  by  A.'s  death,  or  it  may  happen  after  that  time.  In  the 
former  cajg  B.'s  interest  will  take  effect  as  a  common-law  remainde'r 
witliout  any  gap  between  the  lite  estate  expressly  limired  and  the  m- 
terest~e^^essly  Imiited  to  B.  Under  these  circumstances  there  can  be 
no  cutting  short  by  B.  of  any  estate  which  has  come  into  possession. 
On  the  other  hand,  B.'s  interest  might,  if  it  took  eft'ect  as  limited,  do 
so  after  A.'s  life  estate  had  termmafed  and  after  a  tuture  mterest  in 


fee  had  vested  in  possession  in  the  children  of  A.  In  thatcase  B.'s 
interest,  it  it  took  ettect,  would  do  so  as  a  shifting  executory  interest 
cutting  short  a  previous  estate  in  fee  expressly  limited. 

It  is  argued  on  behalf  of  N.  that  the  tuture  interest  in  B.  in  the  case 
at  bar  is  as  clearly  destructible,  if  it  must  take  effect  as  a  shifting  in- 
terest after  a  fee  expressly  limited,  as  is  the  contingent  remainder  when 
it  must,  by  the  termination  of  the  particular  estate  before  the  contin- 
gency happens,  take  eft'ect,  if  at  all,  as  a  springing  future  interest  cut- 
ting short  a  reversion  in  fee  by  operation  of  law  and  vested  in  posses- 
sion. It  is  argued  that  when  X.  died  A.  had  no  child,  and  B.'s  interest 
was,'  therefore,  at  that  time  capable  of  taking  effect  as  a  common-law 
remainder  vesting  in  possession  at  A.'s  death.  It  is  insisted  that  the 
rule  of  the  common  law,  as  deduced  from  the  cases  of  the  destructibil- 
ity  of  contingent  remainders,  is  that  if  the  future  interest  can  possibly 
take  effect  as  such  a  common  law  remainder  it  must  do  so,  and  if  after- 
wards, as  events  turn  out,  it  cannot  do  so,  but  must  take  effect  as  an 
executory  interest  which  would  have  been  invalid  under  the  feudal 
land  law,  then  it  must  fail  entirely.  It  is  claimed  that  a  future  interest 
which,  as  it  is  created,  can  take  effect  as  a  remainder,  must  do  so  in 
that  way  or  fail  entirely  and  that  it  logically  makes  no  difference 
whether  the  future  interest  fails  to  take  eft'ect  as  a  remainder  because 
the  event  upon  which  it  is  limited  happens  after  the  tennination  of  a 
life  estate  with  no  other  estate  expressly  created  intervening,  but  only 
a  reversion  in  fee,  so  that  the  future  interest  would,  if  valid,  be  obliged 
to  take  eft'ect  as  a  springing  executory  interest,  or  because  another  fee 
expressly  limited  does  intervene,  so  that  the  future  interest  would  have 
to  take  effect  as  a  shifting  executory  interest. 

The  weakness  with  these  logical  deductions  is  that  they  are  based 
upon  an  illogical  premise.    The  adherence  to  the  rule  of  destructibil- 


Ch.  4)  CONTINGENT  REMAINDERS  57 

ity  after  springing  and  shifting^  inj^erests  were  allowed  and  made  in- 
destructible  was^  Iogi(^rerror._The  rule  that  aTIuture  inlerest.wHch 
can  take  effect  as  a  common  law  remaindef~must  do^  so  or  fail  entirely 
a'nd  can  never  take  effecr  as  a  springing~e3cecutory  devise  or  usej^jio 
more  thana  circumlocution  announcing  the  rule  of  destructibility  Tt 
is,  thereforeVequally  a  logical  error.  We  may  guess  that  the  rule  of 
destructibility  would  never  have  obtained  if  the  question  had  come  up 
after  the  validity  of  springing  and  shifting  interests  and  their  inde- 
structibility had  become  established  and  the  rule  against  perpetuities 
promulgated.  A  rule  of  destructibility  which  is  founded  more  upon  a 
pre j udice  in  favor  ot  feudal~rures  than  upon  logic  is  norin  a  goo3~ 
position  at  this  day  to  msist  upon  its  extension,  accordingjothe  strict- 
est logic,  to  a  case  not  actually  covered  and  determined  Ijy  authority. 
FoT  this  reason  the  doctrme  o±  destructibility  is  held  to  b^ inapplicable 
in  the  case  at  bar.^* 


ut-u^i  ^  ?^/-  X-J^ 


8  &  9  VICT,  c.  106,  §  8  (1845):  That  a  contingent  remainder,  ex- 
is  ting^'ar'any~timF"aTteF~nie~3TsF"of  December,  1844,  shall  be,  and,  if 
created  before  the  passing  of  this  act,  shall  be  deemed  to  have  been, 
capable  of  taking  effect,  notwithstanding  the  determination,  by  forfei- 
ture, surrender,  or  merger,  of  any  preceding  estate  of  freehold  in  the 
same  nianneT,  in  all  resptctsT  as  it  such  determination  had  not  hap- 
penedT'"'' 

i4  But  see  Gray,  Rule  against  Perpetuities  (3d  Ed.)  §  338,  note  3,  and  Chal- 
lis  V.  Doe,  18  Q.  B.  231,  7  H.  L.  C.  531,  post,  p.  536. 

15  "In  a  note  to  tlie  passage  just  cited  [3  Dav.  Conv.  (3d  Ed.)  267]  refer- 
ence is  made  to  a  suggestion  that  tlie  provision  in  8  &  9  Vict.  c.  106,  §  8,  pro- 
tecting contingent  remainders  from  failure  by  the  forfeiture  of  the  preceding  t<^  /«-<x  C*^ 
estate  of  freehold,  is  not  confined  to  forfeiture  in  consequence  of  any  of  the 
ordinary  causes  of  forfeiture,  but  also  protects  the  contingent  remainders  in 
the  event  of  the  life  estate  determining  under  a  provision  in  the  instrument 
creating  the  limitations,  such  as  a  shifting  clause.  Tliis  view  is,  it  is  said, 
favoured  by  the  circumstance  that  otherwise  the  word  'forfeiture'  would  be 
without  meaning,  since  the  liability  of  a  life  estate  to  forfeiture  by  tlie  act 
of  the  tenant  for  life  has  ceased  altogether  with  the  abolition  by  the  same  U^  ^^uZ  tfyo  irV^ 
act  of  the  tortious  oi>eration  of  a  feoffment.     Id.  268,  note  (u).     The  writer,  '  ' 

indeed,  afterwards  adduces  a  reason  against  the  conclusion  to  which  he  ad-     '"^-C  ^f-LJ^-r^   iv-»^ 
verts,  and  seems  inclined  to  approve.     But  the  reason  he  advances  in  its  fa-      ^^  ,     »         __ 
vour  seems  to  he  grounded  on  a  misapprehension.     Forfeiture  by  the  act  of      *'*'^/*-^         **^ 
a  tenant  for  life  did  not  cease  to  be  possible  with  the  enactment  depriving  (v*v»*.u»i     '  Lr^    LiJC' 
feoffments  of  their  tortious  operation.     A  life  estate  was  formerly  liable  to  f^^/#»-*^ 

forfeiture  not  only  by  means  of  a  conveyance  executed  by  the  tenant  and  op-      '^    "■^-4-t^.wv-i^   . 
erating  by  wrong,  but  also  for  various  other  acts  by  him.     2  Blk.  Com.  267,  ' 

268.  Though  not  all  of  these  were  still  operative  at  the  time  of  the  passing 
of  the  act  of  1845,  yet  forfeiture  for  treason  and  felony  continued  until  1870, 
and  then  from  its  abolition  forfeiture  tor  oUtlaAVfy'was'excented.  33  &  34 
Vict.  c.  23,  §  1. 

"The  act  of  1845  did  not  afford  any  support  to  such  contingent  remainders 
as  were  depeiTdrrrtr'O'nTm  event  -wlitrh  iTiighf  Tfor  happen  until  alter  the 
natural  tcrnnnalion  ot  the  proaHiing  estate  nf  frochold.  i''esting  v.  Allen,  12 
M."Sc  W.  2'«y;  Ke  ytyan,  Johns.  3S7  :  Holmes  v.  I'rescott,  10  .Jur.  (N.  S.)  507 ; 
33  L.  J.  Ch.  264;  Rhodes  v.  AVhitehead,  2  Dr.  &  Sm.  532;  Perceval  v. 
Perceval,  L.  R.  9  Eq.  386;    Price  v.  Hall,  L.  R.  5  Eq.  399;    Brackenbury  v. 


58  CLASSIFICATION   OF  FUTURE   INTERESTS  (Part  1 

In  re  LECHMERE  and  LLOYD. 
(Chancery  Division,  1881.     IS  Ch.  Div.  524.) 

Adjourned  Summons. 

Elizabeth  Williams,  widow,  being  seised  of  a  farm  called  Pistill,  in 
the  county  of  Radnor,  by  her  will,  made  in  1846,  shortly  before  her 
death,  devised  the  same  as  follows : 

"I  give  and  devise  the  said  farm,  lands,  and  hereditaments,  unto  and 
to  the  use  of  my  granddaughter,  Elizabeth  Eckley,  and  her  assigns 
during  her  life,  without  impeacliment^f  waste  ;  and  from  and  after  her 
decease  I  give  and  devise  the  same  to  such  children  of  the  said  Eliza- 
beth Eckley  living:  at  her  death,  and  such  i^^sue  then  living  of  her  cliil- 
f^pe.-^t"  ■  dren  then  deceased,  as  either  before  or  after  her  decease  shall,  being  a 

<v-^->..  r  /    ''    "*^^  male  or  males,  attam  the  age  of  twenty-one  years,  or.  beingf  a  female  or 

Cf  oJc^dy^^     females,  attain  that  age  or  marry,  in  fee  simple,  to  take,  if  more  than 

Ctt    ■  '         X- 1  *^(fw   ^^^^>  ^^  tenants  in  common,  according  to  the  stocks,  and  not  according 
T^         '  to  the  number  of  individuals ;  and  if  there  shall  be  no  such  children  or 

).    ..    t  ^^rt     vv-^       issue,"  t"hen  over. 

Elizabeth  Eckley  married  Thomas  Lechmere,  and  died  in  1879,  leav- 
ing seven  children,  of  whom  five  had  attained  twenty-one  at  the  time  of 
her  death,  and  two,  a  son  and  a  daughter,  were  infants,  the  daughter 
being  also  a  spinster. 

There  was  no  issue  of  any  deceased  child. 

The  fiveadult  children  having  entered  into  a  contract  for  the  sale^  of 
the  ?arm,'the  question  arose,  upon  an  ohjecfion  by  the  purchasers, 
whether  these  five  children  could  make  a  good  title  to  the  entirety  of 
the  property;  and  whether  all  the  seven  children  did  not  take  vested 
interests  in  remainder  as  tenants  in  common,  subject,  as  to  the  shares 
of  the  two  infant  children,  to  be  divested  in  case  of  their  dying  under 
age. 

Gibbons,  2  Ch.  D.  417  (but  see  In  re  Lechmere  and  Lloyd,  18  Ch.  D.  524; 
Miles  V.  Jarvis,  24  CTi.  D.  633) ;  Cunliffe  v.  Brancker,  3  Ch.  D.  303 ;  Astley 
K.  Micklethwait.  15  Ch.  D.  59.  Wherever,  therefore,  until  after  the  passing 
of  the  act  next  referred  to,  such  remainders  were  limited,  it  was  necessary 
to  limit  estates  to  trustees  to  preserve  them."  Vaizey  on  Law  of  Settlements, 
1163,  1164. 

In  some  American  states  the  contingent  remainders  act  which  exists  is  of 
partial  effect  only,  like  the  Statute  of  8  «&  9  Vict,  supra:  Maine.  Rev.  St. 
1871,  c.  73.  §  5;  Massachusetts,  Rev.  Laws  (1902)  e.  134.  §  8.  The  acts  in 
both  these  states  antedate  the  English  Contingent  Remainders  Act  of  1845. 
The  Massachusetts  act  appears  in  R.  S.  1836,  c.  59,  §  7;  the  Maine  act  in 
R.  S.  1841,  c.  91,  §  10. 

In  South  Carolina  (1  Rev.  Stat.  1893,  c.  66;  Code  of  Laws  1902,  vol.  1,  § 
2465)  the  act  goes  no  farther  than  to  provide  that  a  contingent  remainder 
shall  not  be  "defeated  by  feoffment  with  livery  of  seisin." 

In  Texas  the  statute  goes  no  farther  than  to  provide  that  the  remainder 
shall  not  be  defeated  by  the  alienation  of  the  particular  estate,  either  by  deed 
or  will,  or  by  the  union  of  such  particular  estate  with  the  inheritance  by 
purchase  or  descejit.     Batts'  Ann.  Civ.  St.  1897,  §  626. 


Ch.  4)  CONTIXGENT    REMAINDERS  59 

The  question  was  raised  for  the  opinion  of  the  court  upon  a  sum- 
mons taken  out  by  the  purchasers  under  the  Vendor  and  Purchaser 
Act,  1874. 

Jessel,  M.  R.  I  am  sorry  there  is  a  report  of  such  a  case  as  Brack- 
enbury  v.  Gibbons,  2  Ch.  D.  417,  because  I  am  not  aware  of  any  other 
case  in  which  the  words  we  have  here  occur,  and  I  cannot  now  say  what 
I  otherwise  should  have  said  had  there  been  no  such  reported  case. 
But,  with  all  respect,  I  must  say  this,  that  the  real  point  does  not  ap- 
pear to  have  been  taken  by  Vice-Chancellor  Hall  in  Brackenbury  v. 
Gibbons,  for  he  fails  to  point  out  that  the  devise  in  that  case,  so  far  as 
it  related  to  children  who  had  not  attained  twenty-one  when  the  par- 
ticular estate  determined,  could  really  only  take  effect  as  an  executory 
devise  and  not  as  a  remainder  at  all.  He  seems  to  have  relied  upon 
Holmes  v.  Prescott,  10  Jur.  N.  S.  507;  12  W.  R.  636,  and  Rhodes  v. 
Whitehead,  2  Dr.  &  Sm.  532 ;  but  those  were  different  cases  altogether, 
for  there  the  words  "or  after"  the  death,  which  were  in  Brackenbury  v. 
Gibbons,  and  which  we  have  here,  did  not  occur.  The  Vice-Chancellor 
says  that  "Every  gift  which  can  take  effect  as  a  remainder  absolutely 
excludes  its  being  treated  as  an  executory  devise."  I  agree,  that  is  the 
rule ;  but  I  am  at  a  loss  to  see  how  the  devise  in  that  case  or  this  could 
take  eft'ect  as  a  remainder.  The  rule  is  that  a^remamder  must  be 
capable  ot  taking  ettect  when  the  preceding  estate  determines.  Now 
what  is  the  gift  here?  it  is  thisl  [His  Lordship  then  read  the  clause 
of  the  will  above  stated,  and  continued:]  The  rule  being  as  stated  by 
Vice-Chancellor  Hall,  that  every  gift  which  can  take  eft'ect  as  a  remain- 
der absolutely  excludes  its  being  treated  as  an  executory  devise,  how 
is  it  possible  to  construe  such  a  gift  as  this —  "to  such  children  of  the 
said  Elizabeth  Eckley  living  at  her  death  as  either  before  or  after 
her  decease  shall,  being  a  male  or  males,  attain  the  age  of  twenty-one 
years,  or,  being  a  female  or  females,  attain  that  age  or  marry,  in  fee 
simple" — as  a  gift  that  can  take  effect  as  a  remainder  as  to  those  chil- 
dren who  had  not  complied  with  the  conditions  of  the  will  before  the 
death  of  the  tenant  for  life?  It  is  impossible.  It  cannot  take  eft'ect 
as  a  remainder  as  regards  those  children  who  attain  twenty-one  or 
marry  after  the  death  ot  the  tenant  for  life;  for  the  class  to  take  under 
the"gTft  to  children  who  attained  twcntv-one  or  married  after  the  death 
coflT^not  Dossiblv  be  ascertained  during  the  lifetime  of  the  tenant  for 
lije.  Where  the  gilt  is  to  a  class  which  can  by  no  possibility  be  as- 
certained  at  the  determination  of  the  preceding  estate  ot  freehold,  the 
class  can  only  take  on  the  footing  of  its  being  an  executory  devise. 
What  ground  is  there  tor  cutting  clown  the  devise  and  saying  that  only 
those  who  had  attained  twenty-one  or  married  at  the  death  of  the  ten- 
ant for  life  were  to  take? 

If  the  devise  be  to  A.  for  life,  and  after  her  death  simply  to  a  class 
of  children  who  shall  attain  twenty-one  or  marry,  I  agree  that  those 
members  of  the  class  who  have  not  attained  twenty-one  or  married  at 
the  death  of  the  tenant  for  life,  though  they  may  do  so  afterwards,  can- 


60  CLASSIFICATION  OF  FUTURE   INTERESTS  (Part  1 

not  take,  according  to  the  rule  in  Festing  v.  Allen,  12  M.  &  W.  279;  but 
here_u^e  have  two  distinct  classes  as  the^objects  of  the  devise,  the  one 
being  children  living~at  th'e^eath  of  the  tenant  for  life  and  attaining 
twenty-one  or  marrying  before  the  death,  and  the  other  being  children 
living  at  the  death  and  attaining  twenty-one  or  marrying  after  the 
death.  There  are  two  children  who  were  living  at  the  death  of  the  ten- 
ant for  life,  but  are  at  present  under  age :  why  should  they  not,  upon 
their  fulfilling  the  conditions  of  the  will,  participate  in  the  testatrix's 
bounty  equally  with  the  other  children  who  had  fulfilled  those  condi- 
tions in  the  lifetime  of  the  tenant  for  life?  But  to  enable  the  second 
class  to  participate  it  is  necessary  to  read  the  gift  to  them  as  an  execu- 
tory devise.  The  rule  is  that  you  construe  every  limitation,  if  you  pos- 
sibly can,  as  a  remainder,  rather  than  as  an  executory  devise.  It  is 
a  harsh  rule :  why  should  I  extend  it  ?  Why  should  a  gift  which  can- 
not possibly  take  effect  as  a  remainder  not  take  effect  as  anexecutory 
devise  ?    I  see  no  good  reason  why  it  should  not. 

The  result  is,  in  my  opinion,  that  the  devise  in  this  case  could  not 
take  effect  as  a  remainder  in  respect  of  those  children  who  surviv"ed  tlie 
tenant  for  life  but  had  not  attairied  twentv-one  at  her  death,  and  must,^ 
therefore,  m  order  to  let  in  those  children,  be  construed  as  an  executory 
deyise.  Consequently  the  five  childrenwlio  have  attained  twenty-olTe 
take  vested  interests  liable  to  open  to  let  in  the  two  infant  cHIIdren  on 
their  fulfilling  the  conditions  of  the  will ;  and  I  am  therefore  of  opinion 
that  the  five  children  who  attained  twenty-one  in  the  lifetime  of  the 
tenant  for  life  cannot  now  make  a  good  title  to  the  entirety  of  the 
property.^* 

i«  Accord:  Dean  v.  Dean,  [1891]  3  Ch.  150;  In  re  Wrightson,  [1904]  2  Ch. 
(C.  A.)  95.    In  Dean  v.  Dean,  supra,  Chitty,  J.,  said: 

"Apart  from  the  clauses  as  to  maintenance  and  advancement,  tliis  case  is 
not  distinguishable  from  Brackenburj'  v.  Gibbons  and  In  re  Leehmere  and 
Lloyd,  18  Ch.  D.  524.  The  decisions  in  those  cases  are  conflicting.  In  the 
former,  Hall,  V.  C,  had  present  to  his  mind  two  rules  of  law ;  the  first,  as  he 
stated  it,  "that  every  gift  which  can  take  effect  as  a  remainder  absolutely  ex- 
cludes its  being  treated  as  an  executory  devise' ;  and,  secondly,  that  a  contin- 
gent remainder  fails  unless  it  is  ready  to  take  effect  in  possession  immediately 
on  the  determination  of  the  particular  freehold  estate.  He  applied  both  rule.;. 
In  the  latter  case,  the  blaster  of  the  Rolls  (Sir  G.  Jessel)  declined  to  apply 
the  first  rule,  and  held  that  the  limitation  was  a  valid  executory  devise.  The 
distinction  which  he  drew  between  a  future  limitation  to  all  the  children  of 
a  tenant  for  life  who  shall  attain  twenty-one  and  a  future  limitation  to  all  the 
children  of  a  tenant  for  life  who  either  during  his  life  or  afterwards  shall 
attain  twenty-one,  seems  at  first  sight  subtle  and  over-refined.  So  far  as  the 
testator's  intention  is  concerned,  the  meaning  of  the  limitations  is  the  same ; 
in  both  cases  the  testator  intends  that  all  the  children  who  attain  twenty-one, 
whether  before  or  after  the  death  of  the  tenant  for  life,  shall  take ;  and 
it  would  seem  strange  to  any  one  not  acquainted  with  the  niceties  of  the 
law  relating  to  real  property  in  this  country,  that  any  different  legal  effect 
should  l>e  given  to  a  mere  difference  in  words  which  mean  the  same  thing. 
But  a  difference  in  the  mere  form  of  words  does  in  several  cases  make  a  dif- 
ference in  law.  For  instance,  w^here  there  is  a  limitation  of  real  estate  to  a 
man  for  life,  or  until  he  shall  attempt  to  aliene,  and  a  limitation  over  on  such 
attempt,  both  limitations  are  valid  and  effectual;    but,  if  intending  the  very 


Ch.  4)  CONTINGENT  REMAINDERS  61 

40  &  41  VICT.  c.  33  (August  2,  1877):  Every  contingent  remainder 
created  by  any  instrument  executed  after  tHe  passing  of  this  act,  or 
by  any  will  or  codicil  revived  or  republished  by  any  will  or  codicil  ex- 
ecuted after  tliat  date,  in  tenements  or  hereditaments  of  any  tenure, 
which  would  have  been  valid  as  a  springing  or  shifting  use  or  execu- 
tory  devise  or  other  limitation  had  it  not  had  a  sufficient  estate  to  sup- 
port it  as  a  contingent  remainder,  shall,  in  the  event  of  the  particular 
estate  determining  before  the  contingent  remainder  vests,  be  capable 
of  taking  effect  in  all  respects  as  it  the  contmgent  remamder  had  orig- 
ifially  been  created  as  a  springing  or  shifting  use  or  executory  devise 
or  other  executory  limitationT" 


BOND  V.  MOORE. 

(Supreme  Court  of  Illinois,  1908.     236  111.  576,  86  N.  E.  386,  19  L.  R.  A. 

[N.  S.]  540.) 

Petitions  by  W.  A.  Bond  and  others  and  by  Lester  Curtis  against 
Sally  Palmer  Curtis  ]\Ioore  and  others,  to  register  land  titles.  From 
decrees  dismissing  the  petitions,  petitioners  appeal,  and  the  appeals 
were  consolidated.    Reversed  and  remanded, 

Horace  K.  Tenney  and  Albert  M.  Kales,  for  appellants.  John  S. 
Huey,  for  appellees. 

DuxN,  J.  Sarah  Walker  died  testate  in  1883,  seised  of  the  west 
quarter  of  lot  2,  in  block  32,  known  as  No.  205  Lake  street,  and  of  the 
west  quarter  of  lot  3,  in  block  16,  known  as  No.  103  South  Water 
street,  both  in  the  original  town  of  Chicago.    The  second  clause  of  her 

same  thing,  the  testator  limits  the  real  estate  to  a  man  for  his  life,  and  then 
adds  a  condition  that  he  shall  not  aliene,  and  that  if  he  does,  the  property 
shall  go  over,  the  condition  and  gift  over  are  void." 

But  compare  White  v.  Summers,  [1908]  2  Ch.  256. 

17  "This  statute  appears  to  provide  for  most  of  the  cases  in  which,  subse- 
quently to  1845,  it  was  still  necessary  to  limit  estates  to  trustees  for  the 
preservation  of  contingent  remainders,  including  that — if,  indeed,  it  was  one 
— which  has  been  already  mentioned,  of  a  parent's  estate  being  subject  to 
determine  or  shift  in  his  lifetime,  as,  for  instance,  on  his  failing  to  assume 
or  discontinuing  the  use  of  a  prescribed  name  and  arms,  or  on  his  acquiring 
another  estate,  and  its  being  intended  that  the  remainder  to  his  children 
should  take  effect,  notwithstanding  the  determination  of  his  estate. 

"Yet  even  this  statute  appears  to  have  left  one  case  unprovided  for,  and 
in  which  it  may  be  still  necessary  to  insert  limitations  to  trustees  to  pre- 
serve. If  a  remainder  is  limited  to  such  children  as  shall  attain  a  certain 
age,  and  when  the  last  precedent  particular  estate  determines  some  only  of 
those  children  have  attained  that  age  the  remainder  will  vest  in  them.  Con- 
sequently the  Act  will  not  operate,  and  the  younger  children  will  be  excluded." 
Vaizey's  Law  of  Settlements,  1164,  1165. 

See,  also.  6  Bythewood's  Conveyancing  (4th  Ed.)  400,  401. 

In  Washburn  on  Real  Property  (6th  VA.)  1600.  the  following  states  are  re- 
feri'ed  to  in  the  note  as  having  a  complete  contingent  remainders  act:  Ala- 
bama, Georgia,  Indiana,  Kentucky,  Michigan.  Minnesota,  Montana,  New  York, 
North  Dakota,  Virginia,  West  Virginia,  and  Wisconsin. 


62  CLASSIFICATION   OP   FUTURE   INTERESTS  (Part  1 

will,  which  was  executed  September  25,  1876,  was  as  follows  :  "I  give, 
bequeath  and  devise  all  of  my  estate,  real  and  personal,  unto  my  son, 
Lester  Curtis,  during  his  lifetime,  and  authorize  him  tcTTell  or  ex- 
cTiange  any  or  all  of  my  real  estate,  and  to  invest  the  proceeds  thereof 
as  in  his  judgment  he  may  think  best;  but  should  he  die  without  chil- 
dreii,  then  the  estate,  or  so  much  of  it  as  may  remain  after  his  reason- 
able expenses  for  living,  etc.,  shall  go  to  my  nearest  relatives,  in  such 
proportions  as  the  law  in  such  cases  does  provide." 

Lester  Curtis  was  the  only  heir  of  the  testatrix.  He  was  unmarried 
at  the  date  of  the  will,  but  at  the  time  of  the  death  of  the  testatrix  he 
was  married  and  had  two  children.  Immediately  after  his  mother's 
death  he  entered  into  possession  of  the  premises,  and  has  ever  since 
continued  in  possession  of  them.  In  February,  1908,  he  conveyed  them 
to  William  A.  Bond,  by  deeds  reciting  the  second  clause  of  the  will  of 
Sarah  Walker  that  undei*  it  Lester  Curtis  took  a  life  estate,  and  that  he 
was  also  entitled,  by  descent,  to  a  legal  reversion  of  the  fee  pending  the 
event  of  his  dying  without  children,  and  the  taking  effect  in  possession, 
in  that  event,  of  the  gift  to  the  testatrix's  nearest  relatives,  and  that  it 
Avas  the  intention  of  the  grantor  to  convey  the  life  estate  and  the  rever- 
sion in  fee,  so  that  the  life  estate  should  merge  in  the  fee  and  be  ex- 
tinguished and  prematurely  destroyed,  and  the  grantee  be  vested  at 
once  with  a  legal  estate  in  fee  in  possession,  and  that  any  contingent 
future  interest  in  the  nearest  relatives  should  be  destroyed.  On  Feb- 
ruary 13,  1908,  William  A.  Bond  executed  a  declaration  of  trust  in  fa- 
vor of  Lester  Curtis  for  the  premises  at  No.  103  South  Water  street 
in  fee,  and  on  February  24,  1908,  together  with  his  wife,  by  special 
warranty  deed  conveyed  the  premises  at  No.  205  Lake  street  to  Lester 
Curtis. 

On  February  26,  1908,  Bond,  claiming  the  fee  as  trustee,  filed  his 
application  to  have  the  title  to  the  premises  at  No.  103  South  Water 
street  registered  under  the  Torrens  act,  and  Curtis  filed  a  separate  ap- 
plication for  the  registration  of  the  title  to  the  premises  at  No.  205 
Lake  street,  'i'he  two  daughters  of  Curtis  were  made  parties  defend- 
ant, as  were  also  various  nieces  and  nephews  of  Sarah  Walker,  her 
next  of  kin.  Mary  Isabel  Curtis,  one  of  the  daughters,  assented  to  the 
petition,  but  the  appellee  Sally  Palmer  Curtis  Moore,  the  other  daugh- 
ter, filed  an  answer,  denying  that  Lester  Curtis  and  Bond  were  the 
owners  of  the  fee,  and  alleging  that  she  and  her  sister  were  the  owners 
of  the  fee  in  remainder,  subject  to  the  life  estate.  The  answers  of  the 
nieces  and  nephews  alleged  that,  next  to  the  daughters,  they  were  the 
nearest  relatives  of  Sarah  Walker,  and  in  case  of  the  death  of  the  two 
daughters  without  issue  before  the  death  of  their  father,  such  of  the 
nieces  and  nephews  as  should  survive  Lester  Curtis  would  be  entitled 
to  the  fee.  The  causes  were  referred  to  an  examiner,  who  found  that 
the  petitioners  were  the  owners  of  the  fee  and  entitled  to  have  their  ti- 
tles registered ;  but  upon  objection  the  reports  were  disapproved,  and 
decrees  were  entered  dismissing  the  applications,  but  without  prejudice 


Ch.  4)  CONTINGENT   REMAINDERS  63 

to  the  rights  of  the  petitioners  in  an  estate  less  than  the  fee.  The  ap- 
peals, prosecuted  separately  to  this  court,  have  been  consolidated. 

The  principal  question  arising  upon  the  construction  of  the  second 
clause  of  Sarah  Walker's  will  is  whether  or  not  there  was  a  devise, 
by  implication,  of  the  remainder  in  fee  to  the  children  of  Lester  Curtis, 
by  reason  of  the  gift  over  to  the  nearest  relatives  of  Sarah  Walker 
should  he  die  \vithout  children.  [The  court  held  that  there  was  no  re- 
mainder  by  imxjlication  in  the_children.] 

The  limitation  of  the  estate  to  the  nearest  relatives  of  the  testatrix 
should  Lester  Curtis  die  without  children  is  a  contingent  remainder. 
Since  Lester  Curtis  was  himself  the  nearest  relative  of  the  testatrix  at 
the  time  of  her  death,  the  devise  comes  within  the  rule  that,  where 
there  is  a  gift  to  one  for  life,  with  remainder  to  the  testator's  next  of 
kin,  and  the  life  tenant  is  tlie  sole  next  of  kin  at  the  death  of  the  testa- 
tor, the  remainder  will  be  considered  as  given  to  the  persons  answering 
the  description  at  the  termination  of  the  estate  for  life.  Johnson  v. 
Askey,  190  111.  58,  60  N.  E.  76.  Both  the  event  upon  which  the  estate 
in  remainder  is  to  come  into  possession,  the  death  without  children  of 
Lester  Curtis,  and  the  persons  who  may  at  that  time  be  entitled,  as  the 
nearest  relatives  of  Sarah  Walker,  to  take  the  estate,  are  uncertain, 
and  the  remainder  is  therefore  contingent.  Until  its  vesting,  or  the  de- 
termination of  the  impossibility  of  its  vesting,  tlie  reversion  in  fee  de- 
scended to  Lester  Curtis  as  the  heir.  Peterson  v.  Jackson,  196  111.  40, 
63rN.  E.  645;  Harrison  v.  Weatherby,  180  111.  418,  54  N.  E.  237;  Pink- 
ney  v.  Weaver,  216  Hi.  185,  74  X.  E.  714. 

It  is  contended  by  appellants  that,  by  the  conveyance  to  William  A. 
Bond  of  the  life  estate  devised  to  Lester  Curtis,  and  of  the  remainder 
in  fee  inherited  by  him,  the  life  estate  became  merged  in  the  fee,  and  tlie 
contingent  remainder  to  the  nearest  relatives  was  destroyed.  The  ef- 
fect of  a  conveyance  of  his  estate,  by  a  life  tenant,  to  the  remainder- 
man is  to  cause  the  destruction  of  the  particular  estate,  which  becomes 
merged  in  the  fee.  Field  v.  Peeples,  180  111.  376,  54  N.  E.  304;  2 
BTackstone's  Com.  177;  4  Kent's  Com.  100.  Every  remainder  requires 
a  particular  estate  to  support  it,  and  a  contingent  remainder  must  vest 
daring  the  continuance  of  the  particular  estate,  or  eo  instanti  that  it  de- 
termines. 2  Blackstone's  Com.  168.  If  the  particular  estate  comes  to 
an  end  before  the  event  upon  the  happening  of  which  the  contingent  re- 
mainder is  to  take  effect  occurs,  the  remainder  is  defeated;  and  this 
is  so  whether  the  preceding  estate  reaches  its  natural  termination  or  is 
brought  to  a  premature  end  by  merger,  forfeiture,  or  otherwise.  "Un- 
less a  contingent  remainder  becomes  vested  on  or  before  the  deter- 
mination of  the  preceding  vested  estate,  it  can  never  come  into  posses- 
sion ;  it  has  perished.  It  makes  no  difference  whether  the  preceding 
estates  have  ended  by  reaching  the  limit  originally  imposed  upon  them, 
or  whether  they  have  been  cut  short  by  merger,  forfeiture,  or  other- 
wise.    Gray  on  Perpetuities,  §  10."'     Madison  v.  Larmon,  170  111.  65, 


64  CLASSIFICATION  OF   FUTURE  INTERESTS  (Part  1 

48  N.  E.  556,  62  Am.  St.  Rep.  356.  "Contingent  remainders  may  be 
defeated  by  destroying  or  determining  the  particular  estate  upon  which 
they  depend  before  the  contingency  happens  whereby  they  become  vest- 
ed. Therefore,  where  there  is  tenant  for  Hfe,  with  divers  remainders  in 
contingency,  he  may,  not  only  by  his  death,  but  by  alienation,  surrender, 
or  other  methods,  destroy  and  determine  his  own  life  estate  before  any 
of  those  remainders  vest,  the  consequence  of  which  is  that  he  utterly 
defeats  them  all."  2  Blackstone's  Com.  171.  So  a  tenant  for  life,  with 
subsequent  contingent  remainders,  might  make  a  tortious  conveyance 
by  deed  of  feoffment  with  livery  of  seisin,  and  thus  forfeit  his  life  es- 
tate for  the  express  purpose  of  destroying  the  contingent  remainders, 
and  upon  reconveyance  of  the  tortious  title  would  hold  it  free  from  the 
contingent  remainders.  It  was  to  prevent  contingent  remainders  from 
being  defeated  by  such  premature  determination  or  destruction  of  the 
preceding  estate  that  the  device  was  invented  of  interposing  trustees  to 
preserve  contingent  remainders  having  a  legal  estate  to  support  the  re- 
mainders until  the  happening  of  the  contingency.  When  the  estate  for 
life  and  the  next  vested  estate  in  remainder  or  reversion  meet  in  the 
same  person,  notwithstanding  intervening  contingent  remainders,  the 
particular  estate  will  merge  in  tlie  reversion  or  remainder,  and  the  con- 
tingent remainders  will  be  destroyed.  A  qualification  of  this  rule  ex- 
ists where  the  creation  of  the  particular  estate  and  the  remainder  or  re- 
version occur  at  the  same  time  and  by  the  same  instrument.  Fearne  on 
Contingent  Remainders,  §§  316-324;  3  Preston  on  Conveyancing  (3d 
Ed.)  399;  2  Washburn  on  Real  Property  (6th  Ed.)  553,  pars.  1597, 
1598;    WilHams  on  Real  Property,  233. 

In  Egerton  v.  IVl^ssey,  3  C.  B.  (N.  S.)  338,  the  devise  was  to  Eunice 
Highfield  for  life,  remainder,  in  default  of  issue  of  Eunice,  to  Peter 
Highfield  in  fee,  residuary  devise  to  Eunice  in  fee.  After  the  death  of 
the  testatrix,  Eunice,  by  lease  and  release,  conveyed  to  Peter  Jackson  in 
fee,  and  after  her  death  without  issue  the  question  of  title  arose  between 
those  claiming  under  Peter  Jackson  and  those  claiming  under  Peter 
Highfield.  It  was  held  that  under  the  residuary  devise  the  reversion  in 
fee  went  to  Eunice  Highfield ;  that  the  life  estate  did  not  merge  in  it 
so  long  as  both  remained  in  the  devisee,  but  that  upon  her  conveyance 
of  both  estates  to  Peter  Jackson  the  Hfe  estate  merged  in  the  fee,  and 
that  the  contingent  remainder  of  Peter  Highfield  was  destroyed.  The 
same  question  arose  in  Bennett  v.  Morris,  5  Rawle  (Pa.)  9,  and  a  simi- 
lar question  in  Craig  v,  Warner,  5  Mackey  (D.  C.)  460,  60  Am.  Rep. 
381,  and  were  similarly  decided.  In  Faber  v.  Police,  10  S.  C.  Z76,  and 
McElwee  v.  Wheeler,  10  S.  C.  392,  the  devise  was  for  life,  with  contin- 
gent remainders  over,  the  life  tenant  being  the  sole  heir  of  the  testator. 
The  devisees  made  deeds  of  feoffment  with  livery  of  seisin,  and  their 
grantees  reconveyed  to  the  grantors.  It  was  held  that,  the  common  law 
not  having  been  modified  in  South  Carolina  at  the  time,  the  effect  of 


Ch.  4)  CONTINGENT  REMAINDERS  65 

the  deeds  was  to  destroy  the  h'fe  estates  and  perfect  the  absolute  title 
in  the  life  tenants.    Redfern  v.  Middleton,  Rice  (S.  C.)  459. 

The  case  of  Frazer  v.  Supervisors  of  Peoria  County,  74  111.  282,  is 
cited  as  sustaining  the  proposition  that  the  court  will  not  permit  a  con- 
tingent remainder  to  be  destroyed  contrary  to  the  will  of  a  testator  or 
grantor.  A  deed  was  made  to  an  unmarried  woman  and  the  heirs  of 
her  body.  She  reconvcyed  before  having  issue,  and  it  was  held  that  the 
contingent  remainder  to  her  children  was  not  thereby  destroyed.  The 
question  there  discussed  was  the  effect  of  section  6  of  the  statute  of  con- 
veyances, which  modifies  estates  tail  so  as  to  give  the  first  taker  a  life 
estate,  with  the  remainder  in  fee  simple  absolute  to  the  next.  The  doc- 
trine of  merger,  which  has  just  been  considered,  did  not  apply  to  es- 
tates tail  under  the  statute  de  donis,  which  were  an  exception  to  the 
rule.  Such  estates  were  protected  and  preserved  from  merger  by  the 
operation  and  construction  given  to  the  statute  de  donis  for  the  express 
purpose  of  preventing  the  particular  tenant  from  thus  barring  and  de- 
stroying the  estate  tail.  2  Blackstone's  Com.  177,  178.  It  was  held  m 
Frazer  v.  Supervisors  of  Peoria  County  that  tlie  General  Assembly  did 
not  intend  to  restore  the  common  law  as  it  stood  before  the  adoption 
of  the  statute  de  donis,  and  leave  the  donee  with  power  to  alien  the  es- 
tate and  repurchase,  and  thus  cut  off  both  the  remainder  and  reversion, 
but  did  intend  that  the  person  who  should  first  take  from  the  tenant  in 
tail  should  take  a  fee  simple  absolute,  without  any  power  in  the  donee 
to  dock  the  remainder,  or  any  reversion  in  the  donor  except  on  failure 
of  issue.  The  case  deals  with  an  estate  tail  only  under  our  statute,  and 
is  a  case  of  statutory  construction  only,  having  nothing  to  do  with  the 
general  question  of  the  destruction  of  contingent  remainders. 

Our  conclusion  is  that  the  language  of  the  will  does  not  warrant  the 
implication  of  a  devise  of  the  remainder  to  the  children  of  Lester  Cur- 
tis ;  that  the  reversion  descended  to  Lester  Curtis,  as  heir  at  law ;  that 
by  his  deed  to  William  A.  Bond  the  life  estate  merged  in  the  reversion, 
and  the  contingent  remainder  to  the  nearest  relatives  of  the  testatrix 
was  destroyed;  and  that  the  appellants  hold  the  title  to  the  premises 
involved  in  the  respective  causes  in  fee  simple. 

The  decrees  are  reversed,  and  the  causes  remanded  for  further  pro- 
ceedings in  accordance  with  this  opinion.^ ^ 

Reversed  and  remanded. 

18  The  three  judges  dissenting  did  so  only  as  to  the  point  that  there  was 
no  remainder  in  tlie  cliildren  by  implication. 

But  see  Simonds  v.  Siniouds.  199  Mass.  552.  85  N.  E.  860,  19  I*  R.  A-  (N.  S.) 
686  (1908) :   Ilayward  v.  Spaulding,  75  N.  U.  92,  71  Atl.  21SLa908) ;   Gray,  Rule 
against  rerpetuities  (3d  Ed.)  §  918  et  seq. 
4  Kales  Prop. — 5 


66 


CLASSIFICATION  OF  FUTURE   INTERESTS 


(Part  1 


PROPOSED  LEGISLATION. 

No  remainder  or  other  interest  sliall  be  defeated  by  the  determina- 
tion of  the  precedent  estate  or  interest  prior  to  the  happening  of  the 
event  or  contingency  on  which  the  remainder  or  expectant  interest  is 
limited  to  take  effect.^® 


SECTION  2.— CONSTRUCTION, 


WEBB  V.  HEARING. 

(Court  of  King's  Bench,  1617.  Cro.  Jac.  415.) 

Ejectment  for  a  messuage  in  London.  Upon  a  special  verdict  the 
case  was,  that  William  Say  was  seised  in  fee  of  this  messuage  holden  in 
socage,  having  Margaret  his  wife,  Francis  his  son,  and  three  daugh- 
ters, Agnes,  Alice,  and  Elizabeth,  and  deviseth  the  said  messuage  in 
this  manner:  "I  bequeath  to  Francis  my  son  my  houses  in  London, 
after  the  death  of  m}n\'ite;  "and  if  my  three_daughters,  or  either  of^ 
them,~do  overhve  theiFmotlier,  and  Francislheir  brother  and  his  heirs,'' 
then  they  to  enjoy  the  same  houses  ior  term  ot  tneir  lives;  and  the 
same  houses  then  I  give  to_jny  sister^sons,  Roger  Wittenbury_and 
John  Wittenbury,  and  they  to  pay  yearly  to  the  Bachelors'  Company^ 
Merchant  Taylors'i6.  10.y.  And  if  they  or  their  successors  deny  the 
payment  of  the  said  sum,  then  it  shall  be  lawful  to  the  wardens  of  the 
said  company  to  enter  and  discharge  them  forever."  It  was  found, 
that  the  devisor  died;  the  son  and  two  of  the  sisters  died  without  is- 
sue; the  wife  jNIargaret  survived  them,  entered  and  died;  Elizabeth, 
the  third  sister,  survived,  entered,  and  died,  having  issue  the  defendant ; 
John  Wittenbury  died ;  Roger  entered,  and  died ;  Henry  Pierson  the 
lessor,  his  cousin  and  heir,  entered,  and  made  that  lease ;  the  defendant, 
as  cousin  and  heir  of  Francis  the  son,  ousts  him,  &c. 

The  principal  question  was,  Whether  Francis  the  son  had  a  fee  or  a 
feejail  by  this  will,  in  regard  the  limitation  is.  "If  his  sisters  suryive_ 
him  and  his  heirs"  ? 

The  Court  resolved,  he  liaiLbut  a  fee-tail :  for  "heirs,"JnJMs  place, 
is  intended  "heirs  of  his  body ;"    for  the  limitation  being  to  his  sister^ 


it"Tsnecessarilv  _to_be  intended^that  it 'was  if  he3l^^uld_die  without  is^ 
sue  of  his  body ;  for  they  are  his  heirs  collateral.  And  therefore  there 
is  a  difference  where  a  devise  is  to  one  and  his  heirs,  and  if  he  die  with- 
out heirs,  that  it  shall  remain,  it  is  void,  as  19  Hen.  8,  pi.  9;  yet  when  a 


19  Adapted  from  section  1  of  a  proposed  act  concerning  limitations  of  inter- 
ests in  property,  drafted  by  Professor  Ernst  Freuud.  See,  also,  1  111.  Law 
Rev.  378. 


Ch.4) 


CONTINGENT   REMAINDERS 


67 


devise  is  to  one  and  his  heirs,  and  if  he  die  without  heir,  it  shall  be  to 
his  next  brother,  there  is  an  apparent  intention  what  heirs  he  intended ; 
and  the  intention  being  collected  by  the  will,  the  law  shall  adjudge  ac- 
cordingly. A'ide  18  Eliz. ;  Dyer,  333,  Chapman's  Case;  6  Co.  16, 
Wild's  Case. 

The  second  point,  whether  John  Wittenbury  and  Roger  Wittenbury 
had  a  fee  by  this  deviseT  Aiid  itwas  resoTve  J'theyliad ;  becaiise  tTicy 
had  paid  a  consideration  for  it,  viz.,  an  annual  sum ;  and  the  words, 
"if  tkey  or  their  successors  deny  the  payment,"  show  the  intent,  that 
it  should  go  to  their  heirs.    Vide  4  Edw.  6,  "Estate,"  Br.  78 ;  6  Co.  16. 

A  third  point,  the  estate  being  limited,  "And  if  my  three  daughters 
or  either  of  them,  do  overlive  their  mother  and  brother  and  his  heirs, 
then  tliey  to  haveit,  and,  after  them  John  Wittenburv  and  Roger  Wit- 
tenbury', &c."  Whether  this  be  a  contingent  estate,  and  if  so,  whether 
it  were  performed,  two  ot  the  daughters  dying  in  tHe^litetimeTbf  tHeir 
brother.  And  it  was  resolved  that  this  was  no  limitation  contingent,-" 
buf  shows  when  it  shall  commence,  which  is  well  enough  performed : 
wherefore  it  was  adjudged  for  tlie  plaintiff. — I  was  of  counsel  with  the 
plaintiff. 


LUXFORD  V.  CHEEKE. 

(Court  of  Common  Pleas,  1683.     3  Lev.  125.) 

Ejectment  upon  the  demise  of  Benjamin  Cutter  and  ]\Iary  his  wife; 
and  upon  Xot  guilty  it  was  found  by  special  verdict,  that  John  Church 
was  seised  in  fee,  and  by  his  wife  Isabel  had  issue  four  sons :  Humph- 
ry the  first,  Robert  the  second,  Anthony  the  third,  John  the  fourth; 
and  by  his  will  the  6th  of  March,  1583,  devised  all  tojiis  wife  forjier^ 
life,  if  she  do  not  xmrry,  but  if  she  do  marry,  that  Humphry  presently 
afternier~deceg?b  euLei,  have,  hold,  and  enjoy  all  the  land  to  him  and 
the  heirs  males  ot  his  body;  remainder  to  Robert,  and  the  heirs  males 
oThis  body;  the  remainder  to  Anthony,  and  the  heirs  males  of  his 
body;  remainder  to  John,  and  the  heirs  males  of  his  body;  with  divers 

20  A  fortiori,  where  the  limitations  are  to  A.  for  life,  remainder  to  B.  for 
life,  B.'s  remainder  for  life  is  vested.  Gray,  Rule  against  Perp.  (2d  Ed.)  § 
102 ;    Madison  v.  Laruion,  170  111.  U5,  48  N.  E.  55G,  G2  Am.  St.  Kep.  350. 

Hall  V.  Nute,  38  N.  H.  422,  contra,  no\A-  seems  to  be  overruled.  Keunard 
V.  Kenuard,  63  N.  H.  303 ;  Wi^gin  v.  Perkins,  64  N.  H.  36,  5  Atl.  904 ;  Parker 
V.  Koss,  69  X.  H.  213,  45  Atl.  576. 

The  introduction  of  a  remainder  after  a  life  estate  with  the  words  "after 
th<r'deatli  of  tne  life  Tenant"  do  not  maice  tne  remainaer  contingent.  Doe  v. 
Considine'.  73  U.  S.  4.58.  475,  18  U  Ed.  SdU;  MUniiij  V.  Ktitdura",  fr  Pa.  503; 
Doe  V.  Provoost,  4  Johns.  (N.  Y.)  61.  4  Am.  Dec.  249;  Cheney  v.  Teese,  108 
111.  473;  O'Melia  v.  Mullarky,  124  111.  506,  17  N.  E.  36;  Ducker  v.  Burnham, 
146  111  9,  34  N.  E.  5.58,  37  Am.  St.  Rep.  135;  McCounell  v.  Stewart.  169  111. 
374,  48  N.  E.  201 :  Knight  v.  I'ottgieser,  176  111.  368,  52  N.  E.  934 ;  Bowler  v. 
Bowler,  176  111.  541,  52  N.  E.  437. 

See,  also,  Bates  v.  Gillett,  132  111.  287,  24  N.  E.  611. 


68  CLASSIFICATION  OP  FUTURE   INTERESTS  (Part  1 

remainders  over:  that  Isabel  the  wife  did  not  marry;  and  they  derive 
title  from  Humphry  to  his  grandson,  and  from  him  to  the  wife  (the 
lessor)  filiam  imicam  suam ;  and  that  the  title  of  the  defendant  was  as 
heir  male  of  the  body  of  Robert  the  second  son.  And  after  argument 
it  was  resolved,  that  the  verdict  is  imperfect  as  to  the  plaintiff,  for  the 
grandson  of  Humphry,  though  he  hath  no  other  daughter,  may  never- 
theless have  a  son,  according  to  Gymlett  and  Sand's  Case,  Cro.  Cha. 
391.  Whereupon  by  consent  the  verdict  was  mended,  and  made  filiam 
unicam  et  haeredem  suam.  And  then  the  question  was,  whether  any  es- 
tate tail  be  created  by  this  will.  For  Isabel  the  wife  never  married, 
and  if  no  entail  was  created,  then  the  feme-lessor  hath  a  good  title  as 
heir  general.  But  upon  argument  the  court  resolved,  that  the  land  was 
entailed  by  this  will ;  for  by  tlie  whole  scope  of  tlie  will  it  appears  plain- 
ly,  the  devisor  intended  an  entail  with  several  remainders  over:  and 
rather  than  this  intent  shall  be  defeated,  the  words  shall  be  read  and 
taken  thus:  scil.  if  she  marry,  Humphry  to  enter  presently;  if  slTe  do~~ 
not  marry,  then  Humphry  shall  have,  hold,  and  enjoy  them  to  hmT" 
and^he  heirs  males  ot  hisbody,  with  remainder  over.  VVEereupon 
j uclgment  was  given  for  the  defendant. 


CHALLIS,  LAW  OF  REAL  PROPERTY  (2d  Ed.)  133 :  "The 
question  whether  the  trustees  took  a  vested  estate  was  obviously,  be- 
fore  8  &  9  Vict,  c.  106,  a  question  of  the  utmost  prartirnl  importance, 
because,  if  they  had  taken  a  contingent  estate,  their  estate  would  have 
been  notliing_but_one  more  contingent_remainder.  which  would  have 
been  equally  liable  to  destruction  with  the  rest.  This  question  has  led 
to  some  dm'erence  ot  opniion.  But  it  was  for  all  practical  purposes 
set  at  rest  forever  by  the  decision  of  the  House  of  LQ£d5_in_tlie_case 
of  Smith  d.  I)ormer  v.  Packhurst  or  Parkhurst^  commonly  cited  as 
Dormer  v.  Parlchurst,  or  Dormer  v.  Fortescue,  3  Atk.  135,  6  Bro.  P. 
C.  351,  Willes,  327,  18  Vin.  Abr.  413,  pi.  8,  in  which  case  the  estate 
was  decided  to  be  a  vested  remainder.  Fearne  approved  of  this  deci- 
sion ;  Butler  expresses  no  dissatisfaction  with  it ;  but  Mr.  Josiah  Smjth 
plainly  intimates  his  opinion,  that  it  was  directly  opposed  to  the  princi- 
ples'ofjJieJaw:.  and  that  it  can  be  lustifiedjonly  by,  the  pressing  necessi- 
ty not  to  overturn  all  the  settlements  thenjn  existence.  (Smith  on  Ex- 
ecutory Interests,  p.  116  et  seq.)" 


Ch.  4)  CONTINGENT   REMAINDERS  .69 

EDWARDS  V.  HAMMOND. 

(Court  of  Common  Pleas,  1683.     3  Lev.  132.) 

Ejectment  upon  Not  guilty,  and  special  verdict,  the  case  was :  A 
copyholder  of  land,  borough  English,  surrendered  to  the  use  of  himsel_f 
for  life,  and  after  to  the  use  of  his  eldest  son  and  his  heirs,  if  he  live 
to  the  age  of  21  years ;  provided,  and  upon  condition,  that  if  he  die  be- 
fore zHythat  then  it  shall  remain  to  the  surrenderer  and  his  heirs.  The 
surrenderer  died,  the^  youngest  son  entered ;  and  the  eldest "^n  being: 
17  brought  an  ejectjiiientj  and  the  sole  question  was,  whether  the  devise 
to_the  el^st  son"T>c  upon  condition  precedent,  or  i f  the  condition  tje 
subsequent ;  scil.  that  the  estate  in  fee  shall  vest  immediately  upon  the 
death  of  the  father,  to  be  divested  if  he  die  before  21.  For  the  defend- 
ant it  was  argued,  that  the  condition  was  precedent,  and  that  the  estate 
should  descend  to  the  youngest  son  in  the  mean  time,  or  at  least  shall  be 
in  contingency  and  in  abeyance  till  the  first  son  shall  attain  to  one  and 
twenty;  and  so  the  eldest  son  has  no  title  now,  being  no  more  than  17. 
On  the  other  side  it  was  argued,  and  so  agreed  by  the  Court,  that 
though  by  the  first  words  this  may  seem  to  be  a  condition  precederitT 
yet,  taking  all  the  words  together,  this^  was  not  a  condition  precedent, 
but  a  present  devise  to  the  eldest  son,  subject  to  and  defeasible  bv  this 
condition  subsequent,  scil.  his  not  attaining  the  age  of  21 ;  and  they  re- 
sembled  this  to" die  case  of  Spiiiig"ahd  CsesaF,  reported  by  Jones,  j., 
and  abridged  by  Roll.  1,  Abr.  415,  nu.  12.  A  fine  to  the  use  of  B.  and 
his  heirs  if  C.  pays  him  not  20.?.  upon  Septemb.  10,  and  if  C.  does  pay, 
to  the  use  of  B.  for  life,  remainder  to  C.  and  his  heirs,  where  the  word 
si  does  not  create  a  condition  precedent,  but  the  estate  in  fee  vests  pres- 
ently in  C.  to  be  divested  by  payment  afterwards ;  so  here.  Accord- 
ingly this  case  was  adjudged  in  Mich.  Term  next  foUowing.^^ 

21  Followed  in  the  case  of  freehold  land  in  Broomfield  v.  Crowder,  1  B.  & 
P.  N.  R.  313  (1S05),  and  in  Roome  v.  Philliiis,  24  N.  Y.  463.  Cf.  Boraston's 
Case,  3  Co.  19a  (1587).    And  see  Hawkins  on  Wills,  237-242. 

Lt^ake,  Digest  of  the  Law  of  Property  in  Land,  p.  367:  "Accordingly  a 
devise  to  A.  if  or  when  he  shall  attain  a  given  age,  followed  by  a  devise  over 
in  case  he  die  under  that  age,  is  construed  as  giving  an  inunediately  vested 
estate,  subject  to  be  divested  by  the  executory  devise  over  taking  effect,  and 
not  as  an  executory  devise  upon  his  attaining  that  age,  which  would  be  the 
necessary  construction  if  it  stood  alone  without  the  devise  over." 


(^  J 


70  CLASSIFICATION   OP   FUTURE   INTERESTS  (Part   1 

DOE  d.  WILLIS  V.  MARTIN. 

(Court  of  KiniJc's  Bench,  1700.    4  Terra  R.  HO.) 

This  was  an  ejectmenffor  some  premises  in  the  Isle  of  \Vie;ht  on  the 
joint  and  several  demises  of  Richard  Legg  Willis,  James  Willis,  Bethia 
Ann  Willis,  and  Alary  Willis.  And  on  the  trial  at  the  Summer  Assizes 
at  Winchester,  1789,  before  Buller,  J.,  a  special  verdict  was  found, 
stating  in  substance  as  follows : 

That  Bethia  Legg,  being  seised  in  fee  of  the  premises  in  question, 
on  her  intended  marriage  with  Richard  Willis,  by  deeds  of  lease  and 
release,  dated  the  14th  and  15th  of  Februar}^,  1757,  between  Richard 
Willis  of  the  first  part,  Bethia  Legg  of  the  second  part,  and  Peter 
Bracebridge  and  Robert  Willis  of  the  third  part,  conveyed  to  Brace- 
bridge  and  Robert  Willis  and  their  heirs  to  the  use  of  herself  in  fee  till 
marriage,  and  afterwards,  to  her  sole  and  separate  use  for  life,  without 
impeachment  of  waste,  and  not  to  be  subject  to  the  control  or  debts  of 
her  husband;  remainder  to  tlie  use  of  Richard  Willis  for  life,  without 
impeachment  of  waste ;  remainder  to  the  use  of  all  and  every  the  child 
or  children  or  such  of  them  of  Richard  Willis  and  Bethia  for  sucli^es- 
tates  and  interest,  &c.,  and  in  such  parts,  shares,  and  proportions  as 
Richard  Willis  and  Bethia  should  by  deed  appoint,  and  for  want  of 
such  appointment,  then  to  the  use  of  the  child  or  children  of  Richard 
Willis  and  Bethia  in  such  parts,  shares,  and  proportions,  and  for  such 
estates  and  interest,  as  the  survivor  of  them  should  by  deed  or  will 
appoint,  and  for  want  of  such  appointment,  then  to  the  use  of  all  and 
every  the  child  or  children,  equally,  share  and  share  alike,  to  hold  the 
same,  if  more  than  one,  as  tenants  in  common,  and  not  as  joint-ten- 
ants, and  if  but  one  child,  then  to  such  only  child,  his  or  her  heirs  or 
assigns  forever;  and  in  default  of  such  issue,  then  to  the  use  of  the 
survivor  of  Richard  Willis  and  Bethia  in  fee.  [The  deed  contained  a 
proviso  for  the  revocation  of  the  uses,  the  statement  of  which  is  omit- 
ted.—Ed.] 

The  verdict  then  set  forth  that  on  the  3d  March,  1757,  the  marriage 
between  Richard  Willis  and  Bethia  Legg  took  effect ;  and  that  they  had 
several  children ;  (to  wit)  Richard  Legg  Willis,  their  eldest  son  and 
heir,  James  Willis,  Bethia  Ann  Willis,  and  Mary  Willis,  the  lessors  of 
the  plaintiff;  and  also  one  Thomas  Willis,  since  deceased.  [Facts  as 
to  an  alleged  revocation  under  the  above-mentioned  proviso  were  stated 
in  the  verdict,  but  are  here  omitted. — Ed.] 

The  verdict  then  stated  that  in  Hilai-y  Term  9  Geo.  III.  [1769]  a  fine 
sur  conusance  de  droit  come  ceo,  &c.,  was  levied  of  the  premises  in" 
question  by  Richard  Willis  and  Bethia  his  wife  to  Joseph  Martin.    That 
on  the  21st  of  December,  1775,  Joseph  Martin  by  will  devised  to  the 
defendants  and  their  heirs  upon  certain  trusts  therein  mentioned,  and 


Ch.  4)  CONTINGENT  REMAINDERS  71 

died  in  March,  1776;  on  whose  death  the  defendants  entered,  &c.  In 
1778  Bethia  Willis  died;  and  in  1780  the  first-mentioned  Richard  \Vd- 
lis  also  died,  without  making  any  appointment  by  virtue  of  the  power 
contained  in  the  release  of  February,  1757.  On  Richard  Willis's  death 
Richard  Legg  Willis  was  beyond  the  seas,  and  did  not  return  till  the 
latter  end  of  the  year  1785;  James  Willis  was  then  an  infant,  of  the 
age  of  19  years;  Bethia  A.  Willis  was  of  the  age  of  18  years;  and 
Mary  Willis  is  still  an  infant.  Thomas  Willis,  having  survived  Richard 
Willis  and  Bethia,  died  in  1782,  being  then  an  infant;  after  w^hose 
death  and  within  five  years  next  after,  Richard  Legg  Willis  returned  to 
this  country,  and  James  Willis  and  Bethia  A.  Willis  attained  their  re- 
spective ages  of  21  years,  and  before  the  time  when,  &c.,  they  the  said 
Richard  hegg  Willis,  J.  Willis,  B.  A.  Willis,  and  ]\L  Willis,  in  due  form 
of  law  entered,  &c.,  in  order  to  avoid  the  fine ;  and  thereupon  became 
seised,  &c.,  and  being  so  seised,  caused  an  action  to  be  commenced  for 
trying  the  title,  &c.,  within  one  year  next  after  such  entry,  which  action 
is  now  prosecuting  with  effect,  according  to  the  form  of  the  Statute, 
&c.  And  after  such  entry,  and  while  they  were  seised,  they  demised  to 
the  plaintifT,  &c.,  w^io  entered,  and  was  possessed  thereof  until  the 
defendants  entered  and  ejected  him,  Szc.     But  whether,  &c. 

This  verdict  was  argued  three  several  times;  first  by  Jekyll  for  the 
plaintiff,  and  Gibbs  for  the  defendants,  in  Hilary  Term,  1790;  a  second 
time  by  Watson,  Serjt.,  for  the  plaintiff,  and  by  Lawrence,  Serjt.,  for 
the  defendants,  in  Easter  Term  last;  and  on  this  day  by  Morris  for  the 
plaintiff,  and  Wilson  on  behalf  of  the  defendants. 

Lord  Kenyon,  C.  J.--  The  principal  question  in  this  case  is. 
Whether  the  remainders  to  the  children  of  Robert  and  Bethia  Willis 
were  vested  or  contingent  ?af  the  latter,  it  cannot  be  disputed_^but  that 
the  destruclion  of  the  particular  estate  on  which  they  depended,  before 
thev  btcanie  vested,  would  destroy  them.     One  argument  which  has  r 

been  used  is,  that  the  estate  limited  to  the  trustees  was  an  use  executed  ^  ^  •' 
in  iJiem,  for  that  otherwise  the  estate  limited  to  the  wife  for  her  sole 
and  separate  use  would  not  be  secured  to  her,  but  would  be  under  the 
husband's  control.  But  in  answer  to  that  it  is  sufficient  to  observe, 
that  it  is  limited  to  the  trustees,  without  saying  "to  and  to  the  use  of 
the_trustees."  If  none  of  the  limitations  of  the  settlement  could  possi- 
sTbly  tal-:e  effect  without  this  construction,  I  should  be  inclined  so  to 
decide  it ;  as  was  done  some  years  ago  in  a  case  in  the  House  of  Lords. 
But  that  is  not  the  case  here ;  for  this  estate  was  limited  to  Bethia 
Willis  and  to  her  heirs  until  the  marriage  should  be  solemnized ;  it  was 
therefore  intended  that  the  legal  estate  should  not  be  taken  out  of  her 
unless  the  marriage  took  effect.    Besides  the  Court  of  Chancery  would 

2  2  The  opinion  of  Asliluirst,  J.,  in  concurrence,  is  omitted,  as  also  those 
parts  of  the  other  opinions  which  deal  with  the  question  of  the  revocation  of 
the  uses  of  the  settlement.  It  was  held  by  all  the  judges  that  there  was  no 
revocation. 


ic 


lXJLf^*<M  ■■■«.» 


72  CLASSIFICATION   OF   FUTURE   INTERESTS  (Part   1 

consider  the  husband,  if  it  vested  in  him,  a  trustee  for  the  wife,  so 
that  she  might  have  all  the  benefit  intended  by  the  marriage  settlement. 
If  the  remainders  to  the  children  of  R.  and  B.  Willis  were  contingent, 
tHe~objection  made  by  the  defendants,  that  the  conveyance  by  Willis 
and  his  wife  and  the  fine,  by  destroying  tlie  particular  estate  before  tRey 
vested,  also  destroyed  those  remainders,  must  prevail ;  for  it  is  too 
late,  as  the  law  now  stands,  to  say  that  such  is  not  the  established  doc- 
trine of  contingent  remainders.  This  doctrine  indeed  involves  in  it 
difficulties  which  have  been  frequently  felt  by  wise  and  able  lawyers, 
who  have  wished  to  break  through  the  rule ;  but  they  have  been  deter- 
red from  the  attempt  by  a  consideration  of  the  consequences  that  might 
possibly  ensue.  There  are  two  instances,  it  is  true,  where  the  law  is 
otherwise :  in  equitable  estates,  where  the  contingent  remainders  are 
not  destroyed,  because  the  estate  is  vested  in  trustees  to  preserve  the 
contingent  remainders;  and  in  copyholds,  where  the  estate  in  the 
lord  of  the  manor  will  support  all  the  remainders:  but  in  the  case  ol 
fi^eHhoM  estates  ol  inheritance,  the  rule  is  so  established  that  it  is  not 
now  to  be  shaken.  On  the  first  question  in  this  case  our  judgmerit  must 
depend  on  the  authorities  cited ;  the  three  leading  of  which  are  Lovie's 
Case  [10  Co.  78a],  Walpole  v.  Lord  Conway  [Barnard.  Ch.  153],  and 
Cunningham  v.  Moody  [1  Ves.  Sr.  174].  Of  the  first,  inserted  in 
Rolle's  Abridgment,  which  was  published  under  the  inspection  of  Sir 
M.  Hale,  it  is  sufficient  to  say,  that  it  was  held  in  a  case  circumstanced 
like  the  present,  that  the  remainder  was  contingent.  This  was  also 
adopted  in  a  great  measure  by  Lord  Hardwicke,  in  Walpole  v.  Loid 
Conway.-^  But  I  am  happy  to  find  that,  in  the  last  of  those  cases, 
Cunningham  v.  Moody,  where  the  same  point  arose,  and  where  Lord 
Hardwicke  had  an  opportunity  of  reconsidering  this  question  more 
fully  and  at  a  time  of  Hfe  when  his  judgment  was  more  mature,  that 
great  judge  determined  differently.  And  I  cannot  find  any  substantial 
distinction  between  that  case  and  the  present.  There  Lord  Hardwicke 
(after  saying  that  the  fee  was  not  in  abeyance)  added,  "nor  does  the 
power  of  appointment  make  any  alteration  therein ;  for  the  only  effect 
thereof  is  that  the  fee  which  was  vested  was  thereby  subject  to  be  de- 
vested if  the  whole  were  appointed."  Now  in  this  case  the  limitations 
to  the  children  were  first  subject  to  a  power  of  appointment,  but  for 
want  of  such  appointment  to  the  children  in  fee  (I  say  in  fee,  as  I 

23  "With  regard  to  the  case  of  Walpole  v.  Conway,  which  was  mentioned  in 
"Willis  V.  Martin  as  being  contrary  to  another  decision  of  Lord  Hardwicke  in 
Cunningham  v.  Moody,  and  which  was  pressed  ui)on  us  in  Willis  v.  ^Martin, 
a  further  account  of  it  has  been  found  among  the  papers  of  the  late  Sir  T. 
Sewell,  from  which  it  clearly  ai'pears  that  Ix)rd  Hardwicke  ultimately  gave 
directions  in  it  conformable  to  what  he  had  done  in  Cunningham  v.  Moody. 
I  am  therefore  perfectly  satistied  with  the  decision  of  Willis  v.  Martin ;  and 
though  a  writ  of  error  was  brought  to  reverse  our  judgment  in  that  case,  it 
was  afterwards  non-pross'd  in  the  House  of  Lords."  Per  Lord  Keuyon,  C.  J., 
in  Doe  d.  Tanner  v.  Dorvell,  5  T.  R.  518,  521  (1794). 

See  Smith  v.  Camelford,  2  Ves.  Jr.  COS,  703-707  (1795). 


Ch.  4)  CONTINGENT  REMAINDERS  73 

shall  show  in  the  course  of  my  opinion).  And  whether  the  limitations 
precede  or  follow  the  power  of  appointment,  it  makes  no  difference. 
The  object  of  the  parties  here  was  to  make  the  whole  estate  subject  to 
the  power  and  will  of  the  parents,  according  to  the  situation  and  exi- 
gencies of  the  family.  I  therefore  say,  in  the  words  of  Lord  Hard- 
wicke  in  Cunningham  v.  iVloody,  that  the  fee  was  vested  in  the  children, 
subject  ho\\c\ei"  i'>  lie  (le\c-ieil  In-  the  excciit'H.in  ni  tlie  power  of  ap- 
poiiTOTTeht.  The  opinion  of  Lord  Hardwicke  in  the  latter  case  is  pe- 
culiarly deserving  of  attention,  because  when  it  was  discussed,  the 
former  one  of  Walpole  v.  Lord  Conway,  where  he  had  intimated  a  dif- 
ferent opinion,  was  strongly  pressed  upon  him,  and  because  too  he  de- 
cided the  last  case  at  a  time  when  he  had  the  assistance  of  some  of  the 
most  eminent  lawyers  who  ever  attended  the  bar  of  that  court.  I  can- 
not therefore  forbear  thinking  that,  on  the  authority  of  that  case,  we 
ought  to  decide  that  the  remainders  to  the  children  were  vested,  sub- 
ject nevertheless  to  be  devested  by  the  parents  executing  the  power  of 
appointment.  No  appointment  has  been  made;  and  therefore  at  the 
time  when  the  acts  stated  in  the  verdict  were  done  by  the  parents  in 
opposition  to  the  interests  of  their  children,  Jhejimitations  to  the  chil- 
dren were  not  destroyed.  This  decision  puts  an  end  to  this  cause  as" 
far  as  respects  all  the  children  but  one ;  but  it  has  been  contendedjhat 
they  only  took  estates  for  life,  and  that,  one  being  since  dead,  the  rever- 
sion in  fee  of  the  parents  immediately  came  into  possession.  And 
that  brings  me  to  the  next  question,  whether  the  children  took  estates 
for  life  or  in  fee,  which  arises  on  these  words :  "and  for  want  of  such 
appoinfment,  then  to  the  use  of  all  and  every  the  child  or  children, 
equally,  share  and  share  alike^  t'o  hbld~  the  same,  if  more  than  one,  as 
tenants  in  common,  and  not  as  joint-tenants,  and  if  but  one  child,  thciT 
t'l  7uc!i  onl}'  cTiild,  h\<  or  her  heirs  or  assigns  f')rc\-er."  And  the  ques- 
tion is,  whether  the  wprd.s,  "his  or  her  heirs"  may  not  with_2ropfiety, 
and  ought  not,  considering  the  whole  settlement  and  the  manifest  in- 
tention of  the  parties,  to  act  as  words  of  limitation  on  all  the  preceding 
words  in  the  sentence;  I  cannot  bring  myself  to  doubt  but  that  they 
m;'.y.  By  putting  the  stops,  or  using  the  parenthesis,  as  pointed  out 
by  the  plaintiff's  counsel,  it  becomes  perfectly  clear.  And  we  know- 
that  no  stops  are  ever  inserted  in  Acts  of  Parliament,  or  in  deeds ;  but 
the  courts  of  law,  in  construing  them,  must  read  them  with  such  stops 
as  will  give  effect  to  the  whole :  if  then  we  use  tlie  points  suggested  by 
the  counsel,  the  clause  will  read  thus,  "to  the  use  of  all  and  every  the 
child  or  children,  equally,  share  and  share  alike,  his  or  her  heirs  or  as- 
signs forever."  If  this  had  been  like  the  case  of  Hay  v.  Lord  Coventry, 
3  T.  R.  83,  we  might  have  lamented  that  the  parties  had  not  inserted 
words  of  inheritance  to  carry  their  probable  intent  into  execution, 
but  we  could  not  have  supplied  them.  But  in  this  case  there  are  words 
of_ inheritance;  and  I  think  we  should  defeat  the^mamTesTTntehtion  of 
the  parties,  and  the  object  of  the  settlement,  which  was  to  give  tlie  chil- 


74  CLASSIFICATION  OF  FUTURE   INTERESTS  (Part  1 

dren  estates  of  inheritance,  were  we  not  to  read  this  part  of  it  in  the 
manner  contended  for  by  the  plaintiff's  counsel. 

BuLLER,  J.  This  case  has  been  so  fully  discussed  both  on  the  bench 
and  at  the  bar,  that  I  will  content  myself  with  stating  the  general 
grounds  of  my  opinion. 

With  respect  to  the  first  and  principal  question,  the  argument  on  the 
part  of  the  defendants,  as  far  as  authorities  are  concerned,  rests  on  L. 
Lovie's  Case,  and  on  that  of  Walpole  v.  Lord  Conway.  But  what  was 
said  by  Lord  Coke  in  the  former  case  certainly  did  not  apply  to  the 
point  before  the  court ;  the  question  there  arose  on  the  will  only ;  and 
nothing  was  said  either  in  argument  or  by  any  other  of  the  judges  on 
the  construction  of  the  deed.  The  same  case  is  also  reported  in  Moor. 
772 ;  where  it  appears  that  the  remainder  under  the  will  was  contin- 
gent, because  it  could  not  arise  unless  the  eldest  son  died  without  issue, 
and  there  was  also  an  alienation.  Therefore  I  think  it  did  not  occur 
to  Lord  Coke  tliat  a  remainder,  when  once  vested,  could  be  afterwards 
devested  by  the  execution  of  the  power.  If  there  were  no  authority 
against  this  case,  I  could  not  have  made  up  my  mind  to  agree  to  it ; 
but  his  opinion  has  been  since  controverted  in  other  cases.  In  2  Lord 
Raym.  1150,  Mr.  J.  Powell,  speaking  of  L.  Lovie's  Case,  said,  "Though 
it  was  a  doubt  in  L.  Lovie's  Case,  whether  a  remainder  could  belimlF 
ed  after  a  contingent  fee,  yet  it  is  none  now.  And,therefore  if  a  fee- 
sTmple  be  limited  to  such  persons  as  A.  shall  appoint  by  his  will,  re- 
mainder over,  that  is  a  good  remainder  vested  till  the  appointment." 
Now  the  instance  there  put  is  directly  this  case ;  and  if  the  limitations 
to  the  children  were  vested  on  the  birth  of  a  son,  nothing  has  since  hap- 
pened to  devest  them.  The  defendants'  counsel  have  rather  hinted  at, 
than  insisted  on,  a  difference  between  this  case  and  that  put  by  one  of 
the  plaintiff's  counsel,  of  a  remainder  to  the  first  and  other  sons  of  A. 
with  a  remainder  to  the  first  and  other  sons  of  B.  his  brother,  where, 
on  the  birth  of  B.'s  son  before  A.  had  any  son,  the  remainder  would 
vest  in  the  former,  subject  to  be  devested  on  the  birth  of  a  son  of  A.: 
but  I  see  no  distinction;  for  when  a  child  of  Robert  and  Bethia  Willis 
was  born,  the  limitation  was  vested  in  him  exactly  in  the  same  manner 
as  if  the  limitation  had  been  to  their  first  and  other  sons.  If  there  had 
been  no  power  of  appointment,  the  limitation  to  the  children  would 
have  vested  on  the  birth  of  a  child :  that  was  the  point  decided  in  Lewis 
Bowles's  Case.  Then  suppose  the  limitation  to  the  children  had  been 
followed  by  a  proviso  containing  a  power  of  appointment,  that  would 
not  have  varied  the  case :  if  so,  what  difference  is  there,  either  in  rea- 
son or  in  law,  whether  the  power  of  appointment  be  inserted  in  one 
part  of  the  instrument  or  the  other?  The  court  must  consider  the 
whole  deed  together  in  order  to  collect  the  intention  of  the  parties.  As 
to  the  quantum  of  interest  which  the  children  took,  that  question  also 
seems  equally  clear.  Suppose  the  limitation  were  to  "all  and  evei"y  the 
children,  and  his  or  her  heirs  and  assigns  forever :"  that  would  not  be 


Ch.4) 


CONTINGENT  REMAINDERS 


75 


grammatically  written,  but  the  intention  of  the  parties  bemg  manifest, 
the  court  must  read  it  thus,  his,  her,  or  their  heirs  and  assigns  forever. 
This  question  arises  on  a  family  settlement,  which  was  made  for  the 
benefit  of  all  the  children  of  the  marriage ;  and  in  order  to  give  effect 
to  the  intention  of  the  parties,  we  may  leave  the  intervening  words  in  a 
parenthesis,  by  which  means  the  word  "heirs"  will  have  relation  to 
the  words  in  the  former  part  of  the  sentence. 

Grosk,  J.  If  my  brother  BullKR  found  the  case  so  much  exhausted 
as  to  make  it  unnecessary  for  him  to  go  fully  into  every  part  of  it, 
much  less  necessary  is  it  for  me  to  do  so.  The  first  considerable  ques- 
tion is,  whether  the  remainder  to  the  children,  which  was  certainly  con- 
tingent in  its  creation,  did  or  did  not  become  vested  in  the  children  as 
they  came  in  esse.  I  confess  I  was  at  first  forcibly  struck  with  L. 
Lovie's  Case,  and  Walpole  v.  Lord  Conway,  as  also  with  the  common 
definition  of  a  contingent  remainder.  But  I  think  that  the  rule  laid 
down  in  Cunningham  v.  Moody  is  the  best  and  wisest  construction : 
and-fhTfe  the  rule  is  "that  a  remainder  may  vest,  liable  to  be  devested 
by  ttrr  execution  of  a  power  of  appointment."  The  ground  of  it  is, 
that  the  courts  will  never  suffer  the  fee  to  be  in  abeyance  but  from  ne- 
cessity. And  I  am  the  more  inclined  to  adopt  this  rule,  as  being  the  most 
likely  to  give  eft"ect  to  the  intention  of  the  parties ;  which  the  contrary 
doctrine  would  probably  defeat.  Therefore  I  think  that  on  the  birth 
of  the  children  the  limitations  to  them  became  vested ;  and  as  to  the 
quantum  of  estate  which  they  took,  I  have  not  a  particle  of  doubt.  By 
reading  the  words  in  the  mode  adopted  by  the  court,  all  the  difficulty  is 
removed.-* 

2  4  The  opinion^  of  Kciiywn',  0.  J.,  a^^i^\Asbllurst/i:lnd  Grose,  M.,  in  concur- 
rence, are  omittetl,  as  Is  also  that  part  of'TBiiller,  J.'Vopiuiou  whiCh  deals  with, 
the  question  of  the  revocation  of  the  uses  of  the  settlement.  It  was  held  by 
all,  the  judges  that  there  was  no  revocation. 

jWfctlLJUi.gtH-d  to-thor-tmuc  of  W'Olpolti -V. -COUVVH.V.   tvhiih  wan  montionod  i<i 
"\Anllis  V.  Martin  as  beint:  contrary  to  another  decision  of  Lord  Hardwicke  iii 
C  Inniuijham  v.  Jloody,  and  which  was  pressed  upon  us  in  Willis  v.  Martin, 
a  further  account  of  it  has  been  found  among:  the  papers  of  tlie  late  Sir  l, 
.Swell,  from  which  it  clearly  appears  that  f^rd  Hardwicke  ultimately  ^'av  ^ 
d  rcctions  in  it  conformable  to  what  he  had  done  in  Cunningham  v.  Muody 
I  am  therefore  perfectly  satisfied  with  the  decision  of  Willis  v.  ^Martin ;    am 
tl  ougb  a  writ  of  error  was  brought  to  reverse  our  .iudgment  in  that  case,  i 
whs  afterwards  non-pross'd  in  the  House  of  Lords."     Eai-  T^rd   h>nyon,  fi 
J.\  in  Doe  d.  Tanner  v.  Dorvell,  5  T.  R.  518,  521  (1794^ 

The  dicta  in  Johnson  v.  Battelle,  125  Mass.  453,  "iHl" (1878),  and  Taft  v 
Taft.  130  Mass.  401,  464,  405  (1S81).  must  be  inadvertent. 

See  Harvard  College  v.  Balch.  171  111.  275,  40  N.  E.  54.3;  Kirkpatrick  v. 
Kirkpatrick,  197  111.  144,  64  N.  E.  267 ;  Railsback  v.  Lovejoy,  116  111.  442  6 
N.  E.  504;  Bergman  v.  Arnhold,  242  111.  218,  89  N.  E.  1000.  See  Gray,  Rule 
against  Perp.  (2d  Ed.)  §  112. 


^Uju  i^u^trf  >  1^ 


ru 


^u^^^72.K. 


76  CLASSIFICATION   OF  FUTURE   INTERESTS  (Part  1 

DOE  d.  PLANNER  v.  SCUDAMORE. 
(Common  Bench,  1800.    2  Bos.  &  P.  2S9.) 

This  was  an  ejectment  to  recover  possession  of  a  messuage  and 
lands  described  in  the  declaration  which  came  on  to  be  tried  at  the 
last  assizes  for  Bedfordshire,  when  a  verdict  was  found  for  the  plain- 
tiffs, subject  to  the  opinion  of  the  court,  on  a  case  in  substance  as 
follows : 

Thomas  Lane  on  the  9th  of  March,  1792,  by  his  will  duly  executed, 
devised  as  follows :  "I  give  and  devise  my  messuage  or  tenement  and 
farm  called  Buckingham-hall  with  the  lands  and  appurtenances  there- 
unto belonging  and  all  other  my  real  estate  whatsoever  situate  lying 
and  being  in  the  parishes  of  Higham  Gobiais  Pulloxhill  and  Barton 
or  elsewhere  in  the  county  of  Bedford  unto  and  to  the  use  of  my 
brother  George  Lane  of  the  city  of  Canterbury  and  his  assigns  for 
and  during  the  term  of  his  natural  life  without  impeachment  of  waste, 
and  from  and  immediately  after  his  death  then  I  give  and  devise  the 
same  unto  and  to  the  use  of  my  amiable  friend  Catherine  Benger  (niece 
to  Mrs.  Mary  Shiiidler  of  Burgate  Street  Canterbury  and  who  at  this 
time  lives  with  me  and  superintends  the  management  of  my  family) 
her  heirs  and  assigns  for  ever  in  case  she  the  said  Catherine  Benger 
shall  survive  and  outlive  my  said  brother  but  not  otherwise;  and  in 
case  the  said  Catherine  Benger  shall  die  in  the  life-time  of  my  said 
brother  then  and  in  such  case  I  give  and  deyise  my  said  messuage 
farm  lands  and  real  estate  in  the  said  county  of  Bedford  irnto  and 
to  the  use  of  my  brother  George  Lane  his  heirs  and  assigns  for_eyer." 
In  March,  1793,  the  said  Thomas  Lane  died  without  having  altered 
or  revoked  his  said  will,  leaving  the  said  George  Lane,  his  brother, 
and  heir  at  law,  him  surviving,  who  thereupon  entered  on  the  estate 
so  devised,  being  the  premises  in  question.  In  Trinity  term,  1793,  the 
same  Geprge  Lane  levied  a  fine  sur  conuzance  de  droit  come  ceo,  &c., 
with  proclamations  of  the  premises  in  question,  and  declared  the  use 
of  the  said  fine  to  himself  in  fee.  On  the  15th  December,  1796,  the 
said  George  Lane,  by  his  will  duly  executed,  devised  the  said  prem- 
ises to  Edward  Scudamore  the  defendant  in  fee ;  and  in  November, 
1799,  the  said  George  Lane  died  in  possession  of  the  premises,  with- 
out having  altered  or  revoked  his  said  will.  On  the  29th  May,  1798, 
the  said  Catherine  Benger  made  an  actual  entry  upon  the  premises  in 
question,  being  within  five  years  after  the  levying  the  said  fine,  and 
for  the  purpose  of  avoiding  the  same.  Catherine  Benger  afterwards 
married  John  Planner,  and  on  the  17th  of  January,  1800,  before  the 
bringing  of  this  ejectment,  the  said  John  and  Catherine  Planner,  the 
lessors  of  the  plaintiff,  made  an  actual  entry  on  the  said  premises. 

The  question  for  the  opinion  of  the  court  was.  Whether  the  lessors 
of  the  plaintiff  were  entitled  to  recover?  If  they  were,  the  verdict 
was  to  stand,  but  if  not,  a  verdict  to  be  entered  for  the  defendant. 


Ch.  4^)  CONTINGENT  REMAINDERS  "  77 

Heath,  J.  Two  questions  have  been  made  in  this  case :  first, 
Whether  the  condition  be  precedent  or  subsequent?  Secondly,  Wheth- 
er the  devise  to  C.  Benger  be  a  contingent  remainder  or  executory  de- 
vise? It  has  been  truly  said,  that  there  are  no  technical  words  by 
which  a  condition  precedent  is  distinguishable  from  a  condition  sub- 
sequent; but  that  each  case  is  to  receive  its  own  peculiar  construc- 
tion according  to  the  intent  of  the  devisor.  The  question  always  is. 
Whether  the  thing  is  to  happen  before  or  after  the  estate  is  to  vest? 
If  before,  the  condition  is  precedent;  if  after,  it  is  subsequent.  In 
this  case  it  is  clear  that  the  event  is  to  happen  before  the  estate  can 
vest :  forTlie^br other  is  to  die  before  C.  Benger  can  be  entitled  to  the 
estate,  the  words  being  "in  case  the  said  C.  Benger  shall  survive  and 
outlive  my  said  brother,  and  not  otherwise."  In  all  the  cases  which 
have  been  cited  to  prove  this  a  condition  subsequent,  the  intent  of 
the  testator,  has  been  clear  that  the  estate  should  vest  immediately  in 
possession.  Such  was  the  case  before  Lord  Talbot,  and  such  \vas  the 
case  of  Edwards  v.  Hammond.  This  case  therefore  is  distinguishable 
from  the  cases  cited,  since  in  those  cases  the  estate  was  not  intended 
to  vest  in  possession  immediately.  As__to  tlie  second  question,  it  has 
been  decided  so  long  ago  that  it  will  not  admit  of  discussion.  The 
case  is  not  distinguishable  from  Plunket  v.  Holmes.  Where  a  free- 
hold is  limited  to  the  first  taker  and  afterwards  a  fee~is  given  on  a 
condition,  if  it  may  take  effect  as  a  contingent  remainder  it  shall  do 
so ;  and  it  is  not  material  that  a  fee  might  have  descended  to  the  first 
taker  independent  of  the  will. 

Rooke;,  J.  I  am  of  opinion  that  this  is  a  contingent  remainder,  and 
I  found  that  opinion  on  the  case  ot  l^lunket  vrTIolm'es.  It  Avas  the 
intent  of  the  testator  that  G.  Lane  should  take  for  life,  and  that  after 
his  decease  C.  Benger  should  take  an  estate  in  fee  if  she  survived  him, 
but  if  she  did  not  survive  him  that  G.  Lane,  who  was  the  heir  at  law, 
should  take  an  estate  in  fee.  Here  therefore  there  was  a  particular 
estate  for  life,  which  was  sufficient  to  support  the  devise  over  as  a 
contingent  remainder;  and  it  is  a  settled  rule  of  law  that  where  the 
court  can  construe  a  devise  to  be  a  contingent  remainder J~tb_e.y_ will 
never  constrile  it  to  be  an  executory  devise. 

Chamrrk,  J.  I  am  of  the  same  opinion.  The  case  is  perfectly  clear 
both  on  reason  and  authorities. 

Judgment  for  the  defendant. ^■'^ 

^^  See  Fincli  v.  Lane,  L.  R.  10  Eq.  501. 

A  fortiori,  where  the  remainder  is  to  children  who  "survive"  the  life  ten- 
ant, it  is  contingent  and  destructible.  Abbott  v.  Jenkins,  10  Serg.  &  R.  (Pa.) 
296. 


78  CLASSIFICATION  OP  FUTURE   INTERESTS  (Part  1 

FESTING  V.  ALLEN. 

(Court  of  Exchequer,  1843.     12  Mees.  &  W.  279.)  2  6 
See  ante,  p.  50,  for  a  report  of  this  case. 


PRICE  V.  HALL. 

(Court  of  Chaucery,  1S6S.     L.  R.  5  Eq.  399.) 

George  Hall,  by  his  will,  dated  the  28th  of  February,  1839,  be- 
queathed his  personal  estate  to  his  wife  absolutely  for  her  own  use, 
benefit,  and  disposal,  and  all  his  real  estate,  for  and  during  the  term 
of  her  natural  life,  chargeable  wTtTTTlie  payment  of  debts  and  ex- 
penses, and  il5  yearly  and  every  year  during  his  natural  life  unto  his 
grandson  William  Hall,  and  to  his  children  equally  after  his  death. 
"And  as  to  my  said  real  estates,  after  the  death  of  my  wife  I  give, 
devise,  and  bequeath  the  same  equally  to  the  child  or  children  of  my 
said  grandson  AA'illiam  Hall,  if  he  leave  any  him  surviving,  luit  in 
case  he  leave  no  child  or  children  him  surviving,  I  give,  devise,  and 
bequeath  my  said  real  estates,  or  the  residue  thereof,  unto  the  chil- 
dren or  child  of  my  cousin,  Jonas  Wilman,  of  Althorpe,  the  said 
Jonas  Wilman  and  his  wife  first  taking  the  income  thereof  yearly  and 
every  year  during  his  life." 

The  testator  died  in  March,  1843.  Mary  Hall,  his  widow,  died  in 
June,  1855,  leaving  William  Hall  her  surviving. 

At  the  date  of  testator's  death  William  Hall  had  no  children  living, 
but  five  children  had  since  been  born  to  him,  of  whom  three  were 
living  at  the  death  of  the  testator's  widow,  ]\Tary  Hall,  the  tenant  for 
life,  the  other  two  having  been  born  since  her  death. 

The  bill  was  filed  by  the  children  of  William  Hall  for  the  purpose 
of  ascertaining  the  rights  of  all  parties;  and  it  was  prayed  that  the 
income  of  the  infants'  shares  might  be  applied  for  their  maintenance 
and  education,  and  the  back  rents  accounted  for  by  William  Hall,  who 
was  in  possession. 

At  the  hearing  the  Vice-Chancellor  allowed  the  two  children  of 
William  Hall  born  after  the  death  of  Mar}^  Hall  to  be  added  to  the 
record  as  defendants. 

Sir  W.  Pack  Wood,  V.  C.  The  question  is,  whether  the  estate 
vested  in  the  children  of  William  Hall,  subject  to  be  divested  in  the 
event  of  William  Hall  dying  without  leaving  any  child  or  children  liv- 
ing at  his  death,  or  whether  it  is  an  interest  in  the  children  contingent 
upon  William  Hall  dying  in  the  lifetime  of  the  testator's  widow,  the 

26  Accord:  P.ull  v.  Pritchard,  6  Haro,  .^»07  (1847);  Holmes  v.  Prescott,  33 
L.  J.  Ch.  2G4  (18tJ4);  Rhodes  v.  Whitehead,  2  Dr.  &  Sm.  .532  (1865).  Contra: 
Browne  v.  Browne,  3  Sm.  &  G.  5(58  (1S57).  Cf.  .juU  v.  Jacobs,  3  Ch.  D.  70";, 
713  (187G).     See,  also,  Pitzel  v.  Schneider,  216  111.  87,  74  N.  E.  779. 


Ch.  4)  CONTINGENT  REMAINDERS  79 

tenant  for  life,  which  contingency  has  not  taken  effect  by  reason  of 
the  tenant  for  Hfe  having  pre-deceased  WilHam  Hall.  It  is  clear  that 
in  neither  view  could  the  children  of  Jonas  Wilman  take.  The  case 
was  very  ably  argued  by  Mr.  Freeman,  who  relied  upon  that  class  of 
cases  where  it  has  Ijccn  held  that  upon  a  gift  to  A.  when  or  if  he 
shall  live  ta  an. in  lwcnl}--()nc,  followed  by  a  limitation  over  in  case 
he'^e  under  that  age,  the  (le\  ise  over  is  considered  as  indicating  that 
he  is  to  take  all  that  is  net  g-i\en  over  in  the  given  event,  and  that  in 
such  a'ca^c  ihc  iniviast  \-c-t:-  immcdialcl}-,  though  not  absoluteTy  and" 
indefeasibly,  until  A.  attains  twenty-one.  But  there  is  another  class 
of  cases',  of  which  Festing  v^_Allen,  12  M.  &  W.  279 — which,  although 
it  has  been  called  in  question  (see  Browne  v.  Browne,  3  Sm.  &  Giff. 
568),  has  not  been  overruled — is  an  instance,  viz.,  that  il_X.ou  attach 
to  a  legatee  a  description  so  that  the  legatee  cannot  be  ascertained  but 
for  that  dc-cription,  which  contains  in  itself  a  contingency;  then  un- 
til the  contingency  happens  you  have  no  legatee  to  answer  the  whole 
of  tlu-  lO'ini-ite  description,  and  no  one  to  whom  the  doctrine  laid 
down  in  Edwards  v.  Hammond,  3  Lev.  132,  and  that  class  of  authori- 
ties, can  apply.  In  all  the  cases  cited  in  favor  of  vesting,  the  gift  was 
to  children  on  their  attaining  a  particular  age,  and  the  only  words  of 
contingency  were  that,  if  the  particular  age  was  not  attained,  the  es- 
tate was  to  go  over,  the  effect  of  which  was  that,  although  the  estate 
vested  immediately,  it  did  not  vest  indefeasibly  until  the  particular 
age  had  been  attained.  But  in  this  case  the  contingency  which  is  in- 
troduced does  not  fit  in  with  the  prior  interest  given.  Doe  d.  Roake 
v.  Nowell,  1  M.  &  S.  327,  affirmed  in  Dom.  Proc.  (5  Dow.  202),  is  al- 
ways referred  to  by  those  who  disapprove  of  Festing  v.  Allen.  There 
however,  all  the  class  was  distinctly  ascertained  and  indicated,  and  it 
would  be  going  far  beyond  the  authority  of  that  case,  or  even  Browne 
v.  Browne,  to  hold  in  this  case  that  the  children  took  vested  remain- 
ders liable  to  be  divested  in  the  given  event.  It  is  not  here  a  gift  to 
ascertained  persons  with  a  gift  over,  but  there^Was  a  clear  intention 
on  tH'e^paiT  of  fhe  testator  that  the  class  should  not  be  ascertained  un- 
til the  death  of  William  Hall,  and  that  all  those  children  who  sur- 
vived hifn  (Wtlliam  Hall),  and  those  only,  should  take.  Unfortunately 
for  the  interests  of  the  children,  William  Hall  was  not  tenant  for  life, 
and  has  survived  the  person  named  by  the  testator  as  tenant  for  life, 
so  that  the  particular  estate  to  support  the  contingent  remainder  has 
dropped  before  the  event  on  which  the  contingency  depends  has  ar- 
rived. By  treating  it  as  a  remainder  vesting  mimediately  in  the  chil- 
dren living  at  the  death  of  the  tenant  for  life,  it  might  happen  that 
those  children  might  all  die  in  the  lifetime  of  William  Hall,  and  yet 
be  absolutely  entitled,  to  the  exclusion  of  after-born  children  who  sur- 
vived William  Hall.  That  was  the  very  class  of  events  which  was  not 
intended  by  this  testator.  He  meant  to  give  to  any  children  of  Wil- 
liam Hall  whom  he  might  leave  living  at  his  death.     That  was  the 


80  CLASSIFICATION  OF   FUTURE   INTERESTS  (Pait  1 

particular  period  pointed  out  for  ascertaining  the  class,  and  if  no  chil- 
dren of  \A'illiam  Hall  were  then  living,  then  the  property  was  to  go 
over  to  the  W'ilman  family.  I  mention,  lest  it  should  be  thought  that 
I  had  overlooked  it,  the  case  of  Doe  d.  Bills  v.  Hopkinson,  5  O.  B. 
223,  which,  at  first  sight,  looks  very  like  this  case,  but  is  not  so  in 
reality.  There  the  devise  was  to  T.  and  W.  for  life  in  equal  moieties, 
and  after  their  death  the  moiety  of  T.  was  given  "to  such  child  or 
children  as  he  shall  happen  to  leave,  lawful  issue,  at  the  time  of  his 
decease,  and  to  their,  her,  or  his  heirs  and  assigns  forever,  to  take  in 
equal  shares  if  more  than  one."  The  gift  of  W.'s  moiety  was  in  sim- 
ilar terms,  and  in  case  either  T.  or  W.  died  without  lawful  issue,  the 
moiety  of  him  so  dying  was  given  to  the  survivor  and  to  J.  If  both 
T.  and  W.  died,  and  neither  of  them  left  issue,  the  whole  was  given 
to  J.  for  life,  and  after  his  death  to  such  children  as  he  should  leave 
at  the  time  of  his  death.  In  case  all  three,  T.,  W.,  and  J.,  should  die 
without  lawful  issue,  or  if  they,  or  any  of  them,  should  leave  law- 
ful issue,  and  such  issue  should  depart  this  life  under  twenty-one  and 
without  lawful  issue,  then  the  property  was  given  over.  The  court 
there,  looking  to  the  whole  will,  held  that  the  estate  of  each  child 
(of  T.)  in  remainder  vested  at  birth,  liable  only  to  open  and  let  in 
the  interests  of  after-born  children.  It  must  be  held  in  this  case  that 
the  limitations  after  the  death  of  Mary  Hall  to  the  children  of  Wjl-^ 
liam~Hall  were  contingent  hmitations,  and  that,  as  the  contingency 
has  failed,  WilHam  Hall  takes  the"  estate  as  heir-at-law  of  his  father. 
As,  therefore,  the  plaintiffs  are  not  entitled  to  any  interest  under  the 
testator's  will,  the  bill  must  be  dismissed,  and,  as  costs  are  not  asked 
for,  without  costs. ^'^ 

27  In  Parker  v.  Koss,  69  N.  H.  213,  45  Atl.  576,  there  was,  after  a  life  es- 
tate in  the  whole  property,  a  devise  of  portions  to  "the  children  then  living 
of  three  dilfereut  sisters."  Then  follows  the  gift  over  in  these  words:  "If 
there  should  not  be  any  of  the  children  of  any  of  my  deceased  sisters  living, 
their  portion  shall  be  divided  equally  among  the  other  legatees."  The  life 
tenant  renounced  and  the  question  was  whether  the  remainders  were  vested 
so  they  could  be  accelerated.    It  was  held  that  they  were. 

If,  after  limiting  a  remainder  to  the  children  of  the  life  tenant  who  sur- 
vive the  life  tenant,  there  be  added  a  gift  over  if  the  remainderman  does  not 
survive  the  life  tenant  and  dies  leaving  children,  then  to  these  children,  the 
remainder  has  been  held  to  he  contingent.  Haward  v.  Peavey,  l:.'8  111.  430, 
21  X.  E.  503,  15  Am.  St.  Kep.  120;  Thompson  v.  Adams,  205  111.  552,  09  N. 
E.  1 ;  Starr  v.  AMlloughby,  21S  111.  485,  75  N.  E.  1029,  2  L.  R.  A.  (N.  S.)  623 ; 
Brechbeller  v.  Wilson,  228  111.  502,  81  N.  E.  1094;  Wakefield  v.  Wakefield, 
256  111.  296,  100  N.  E.  275,  Ann.  Cas.  1913E,  414. 

In  Wood  V.  Robertson,  113  lud.  323,  15  N.  E.  457,  the  remainder  after  a 
life  estate  was  to  "my  children  then  living  and  the  descendants  of  such  as 
may  be  dead,  share  and  share  alike."  It  was  held  that  the  children  took 
vested  remainders.  See,  also,  to  the  same  effect,  Farnam  v.  Farnam,  53 
Conn.  201,  2  Atl.  325,  5  Atl.  682;  Nodiue  v.  Greenfield,  7  Paige  (N.  Y.)  544, 
34  Am.  Dec.  303. 

If,  in  the  case  of  a  remainder  limited  to  the  children  of  the  life  tenant  who 
survive  the  life  tenant,  there  be  added  the  single  gift  over,  if  any  child  does 
not  survive  and  dies  without  leaving  children,  the  remainder  has  been  field  to 
be  contingent,   in  accordance  with  the  language  expressly  introducing   the 


Ch.  4)  CONTINGENT  REMAINDERS  81 

SECTION  3.— ALIENABILITY 


GOLLADAY  v.  KNOCK. 

(Supreme  Court  of  Illinois,  1908.     235  111.  412,  85  N.  E.  649,  126  Am.  St.  Rep. 

224.)  2  8 

Appeal  from  Circuit  Court,  Coles  County;  M.  W.  Thompson,  Judge. 

This  is  an  appeal  from  the  circuit  court  of  Coles  county  in  a  parti- 
tion proceeding  in  which  the  complainants  claim  an  interest  in  the  real 
estate  in  question  as  grandchildren  and  heirs  of  Moses  Golladay.  The 
real  estate  involved  was  owned  in  fee  simple  by  George  Golladay  at  the 
time  of  his  death,  which  occurred  on  the  13th  of  January,  1854.  The 
interests  of  the  parties  in  the  real  estate  depends  upon  the  construction 
to  be  given  to  the  second  clause  of  the  will  of  George  Golladay.  That 
clause  is  as  follows :  "After  the  payment  of  such  debts  I  give,  devise 
and  bequeath  unto  my  wife,  Nancy  Golladaj,  all  my  personal  property 
and  real  estate"  bemg  in  sections  9  and  10,  in  town  13,  north,  range 
10,  east,  third  P.  M.,  in  said  county,  and  to  her  children  after  her 
death ;  and  if  the  said  Nancy  Golladay  doesliot~Rave~cIiildren  that  wTTl 
irve~to  inherit  said  real  estate,  that  the  said  real  estate,  at  the  death 
of  Nancy  Golladay  and  her  children,  fall  to  Moses  Golladay  and 
his  heirs,  of  said  county."  At  the  time  of  the  death  of  the  testator, 
hfs^  widow,  Nancy  Golladay,  had  no  children,  but  after  the 
death"  of  the  testator  his  widow  •  married  one  Johnson  and  had 
a  daughter  by  him,  who  lived  to  be  23  years  of  age.  This  ^ughter 
die3~ti^fore  Tier  mother.  Moses  Golladay  died  in  1855,  leaving  two 
clTIIclren;3Villiam  Golladay  and  Mary  Knock.  On  May  15,  1900,  Wil- 
liarir^olladay  executed  a  general  warranty  deed  to  TIenry  H.  Fuller 
and  Ross  R.  Fuller,  purporting  to  convey  the  real  estate  described  in 
the  bill.  William  Golladay  died  January  1,  1904,  intestate.  Complain- 
ants are  his  children.  Mary  Knock,  the  only  daughter  of  Moses  Golla- 
day, died  intestate  in  the  year  1890,  leaving  six  children  as  her  only 
heirs.  John  Knock,  Jr.,  one  of  the  children  of  Mary  Knock,  on  the 
27th  day  of  February,  1904,  made  a  warranty  deed  conveying  his  in- 
terest in  the  real  estate  involved  to  Henry  H.  Fuller.  Nancy_Golladay 
died  in  1907.  The  court  below  found  that  Nancy  Golladay  took  a  life 
estate  in  the  real  estate TrTquestion  under  the  will  of  George  Gdlladay,' 

condition  precedent  of  survivuisliip.  Cbapiu  v.  Crow,  147  111.  219,  35  N.  E. 
536,  37  Am.  St.  Kep.  213  feift  over  to  surviving  remaindcrnian) ;  McCanip- 
bell  V.  Mason,  151  111.  500,  38  N.  E.  672  (gift  over  to  surviving  reuiainder- 
mau) ;  City  of  Peoria  v.  Darst,  101  111.  609  (gift  over  to  third  party) ;  Kobe- 
son  V.  Cochran,  255  111.  355,  99  X.  E.  649  (gift  over  to  grantor). 
28  Arguments  of  counsel  omitted. 
4  Kales  Prop. — 6 


S2  CLASSIFICATION  OF  FUTURE  INTERESTS  (Part  1 

and  that  Moses  Golladay  and  his  heirs  took  a  contingent  remainder, 
which  upon  the  death  of  Nancy  Golladay  without  leaving  children 
surviving  her,  became  a  fee  in  the  persons  who  at  that  time  answered 
the  description  of  "heirs  of  Moses  Golladay";  ^^  that  Henry  H.  Fuller 
and  Ross  R.  Fuller  took  nothing  under  their  deed  from  William  GoIIaT" 
day,  and  said  deed  was  by  the  decree  of  the  court  canceled  as  a  cloud 
upon_the  title.  The  court  by  its  decree  found  that  tlie  complainants  are 
each  entitled  to  a  one-sixteenth  interest  in  the  premises  in  fee,  and  that 
H.  H.  Fuller,  Jack  Knock,  Catherine  Knock,  Minnie  Knock,  Anna 
Knock,  and  Emma  Knock  are  each  seised  of  an  undivided  one-twelfth 
interest  in  said  estate,  and  that  no  other  parties  have  any  interest  there- 
in. All^gf  tlie  defendants  other  than  H.  H.  and  R.  R.  Fuller  claimed 
as  heirs  of  Cassie  Johnson,  the  daughter  of  Nancy  Johnson,  formerly 
Nancy  Golladay.  The  court  found  that  these  parties  had  no  interest  in 
the  premises.  Henry  H.  and  Ross  R.  Fuller  excepted  to  the  decree, 
and  have  perfected  an  appeal  to  this  court.  The  errors  relied  on  for 
a  reversal  are  that  the  court  erred  in  finding  that  the  second  clause  of 
the  will  of  George  Golladay  gave  Moses  Golladay  a  contingent  remain- 
der instead  of  a  vested  remainder,  and  that  the  court  erred  in  rendering 
a  decree  in  favor  of  complainants,  against  the  defendants. 

ViCKERS,  J.  (after  stating  the  facts  as  above).  The  principal  ques- 
tion in  this  case  is  whether  the  interest  devised  to  ]\Ioses  Golladay  and 
his  heirs  was  a  vested  or 'a  contingent  remainder,  A  vested  remainder 
is  a  present  interest  which  passes  to  a  party  to  be  enjoyed  in  future,  so 
that  the  estate  is  invariably  fixed  in  a  determinate  person  after  a  par- 
ticular estate  terminates.  2  Blackstone's  Com.  168;  Haward  v.  Peavey, 
128  111.  430,  21  N.  E.  503,  15  Am.  St.  Rep.  120.  Fearne,  in  his  work 
on  Remainders,  on  page  2,  says :  "An  estate  is  vested  when  there  is 
an  immediate  fixed  right  of  present  or  future  enjoyment.  An  estate  is 
vested  in  possession  when  there  exists  a  right  of  present  enjoyment. 
An  estate  is  vested  in  interest  when  there  is  a  present  fixed  right  of 
future  enjoyment."  A  remainder  is  vested  when  a  definite  interest  is 
created  in  a  certain  person,  and  no  further  condition  is  imposed  than 
the  determination  of  the  precedent  estate.  It  is  not  sufficient  that  there 
is  a  person  in  being  who  has  the  present  capacity  to  take  the  remainder 
if  the  particular  estate  be  presently  determined.  It  must  also  appear 
that  there  are  no  other  contingencies  which  may  intervene  to  defeat 
the  estate  before  the  falling  in  of  the  particular  estate.  Smith  v.  West. 
103  111.  332.  In  the  case  last  above  cited  this  court  quoted  with  ap- 
proval the  language  of  Chancellor  Walworth  in  Hawley  v.  James,  5 
Paige  (N.  Y.)  466,  as  follows:  "A  remainder  is  vested  in  interest 
where  the  person  is  in  being  and  ascertained,  who  will,  if  he  lives,  have 

2  !>  Moses  Gollaflay's  remainder  was  clearly  transmissible  by  descent  or 
devise  upon  his  death  before  the  contingency  happened  upon  which  it  was  to 
vest.    Jarman  on  Wills  (Gth  Ed.,  by  Sweet,  1910)  vol.  1,  p.  SO;    vol.  2,  p.  1353. 


Ch.  4)  CONTINGENT   REMAINDERS  83 

an  absolute  and  immediate  right  to  the  possession  of  the  land  upon  the 
ceasing  or  failure  of  all  the  precedent  estates,  provided  the  estate  limit- 
ed to  him  by  the  remainder  shall  so  long  last ;  in  other  words,  where 
the  remainderman's  right  to  an  estate  in  possession  cannot  be  defeated 
by  third  persons  or  contingent  events  or  by  a  failure  of  a  condition 
precedent,  if  he  lives,  and  the  estate  limited  to  him  by  way  of  remain- 
der continues  till  the  precedent  estates  are  determined,  his  remainder  is 
vested  in  interest."  A  contingent  remainder  is  one  limited  to  take  effect 
either  to  a  dubious  and  uncertain  person  or  upon  a  dubious  and  uncer- 
tain event.  This  general  definition  has  often  been  approved  by  this 
court.  While  the  difference  between  a  vested  and  a  contingent  remain- 
der is  clear  enough  under  the  definitions  as  given  by  the  authorities, 
still  it  is  not  always  an  easy  matter  to  determine  whether  a  particular 
instrument  creates  a  vested  or  a  contingent  remainder.  Thus  it  does 
not  necessarily  follow  in  all  cases  that  every  estate  in  remainder  which 
is  subject  to  a  contingency  or  condition  is  a  contingent  remainder.  The 
contingency  or  condition  may  be  either  precedent  or  subsequent.  If 
the  former,  the  estate  is  contingent ;  if  the  latter,  the  remainder  is  vest- 
ed, subject  to  be  divested  by  the  happening  of  the  condition  subsequent. 
Haward  v.  Peavey,  supra,  and  authorities  there  cited.  To  distinguish 
between  a  contingent  remainder  and  one  that  is  vested,  subject  to  be 
divested  by  a  condition  subsequent,  is  often  a  matter  of  much  difficul- 
ty. So  far  as  our  investigation  has  gone,  we  have  found  no  attempt 
to  formulate  a  rule  on  the  subject,  except  the  general  rule  that  it  is  to 
be  determined  in  each  case  as  a  question  of  construction  of  the  instru- 
ment creating  the  interest. 

In  the  case  at  bar  both  parties  agree  that,  under  the  second  clause  of 
the  will  of  George  Golladay,  Nancy  Golladay  took  a  life  estate.  The 
devise  over  to  Moses  Golladay  and  his  heirs  cannot  be  construed  as 
vesting  a  present  interest  in  fee,  subject  to  be  divested  upon  the  death 
of  the  life  tenant  leaving  children  surviving  her.  The  language  of  the 
testator  will  not  bear  such  construction.  The  clearly  expressed  inten- 
tion of  the  testator  was  to  give  his  wife  a  life  estate  in  the  premises, 
with  remainder  in  fee  to  such  of  her  children  as  might  be  Hving  at  the 
time  of  her  death.  Then,  to  meet  the  possibility  that  his  wife  might 
die  leaving  no  children  surviving  her,  he  made  the  devise  over  to  Moses 
Golladay  and  his  heirs.  Here  the  devise  over  depended  on  a  dubious 
and  uncertain  contingency ;  that  is,  the  death  of  the  life  tenant  without 
leaving  children  surviving  her.  The  language  of  the  testator  that  the 
real  estate  is  to  fall  to  Moses  Golladay  and  his  heirs  "at  the  death"  of 
the  life  tenant  clearly  indicates  that  the  testator  did  not  intend  or  con- 
template a  vesting  of  the  devise  over  before  the  happening  of  that  con- 
tingency. In  other  words,  the  testator  has  fixed  the  time  and  the  condi- 
tion under  which  the  estate  may  vest,  and  it  is  not  the  province  of 
courts  to  defeat  the  intention  of  the  testator  by  a  resort  to  artificial 
,-iiV-  of  construction. 


84  CLASSIFICATION  OP  FUTURE   INTERESTS  (Part  1 

Appellants  place  much  reliance  upon  the  case  of  Boatman  v.  Boat- 
man, 198  111.  414,  65  N.  E.  81.  That  case  arose  under  the  following 
facts :  The  testator  devised  a  certain  portion  of  his  real  estate  to  his 
son,  Emory  Boatman,  subject  to  the  following  condition :  "The  share 
of  the  real  estate  that  my  son  Emory  gets  under  this  will  is  only  a  life 
estate.  He  is  to  have  the  use,  rents  and  proceeds  of  said  land,  after 
paying  taxes  and  necessary  repairs,  so  long  as  he  may  live.  At  his 
death,  if  he  leaves  any  child  or  children  surviving  him,  then  said  land 
is  to  go  to  such  child  or  children,  but  if  he  dies  leaving  no  child  or  chil- 
dren ■surviving  him  then  said  lands  to  go  to  his  brothers  and  sisters." 
After  the  death  of  the  testator,  and  during  the  life  of  Emory  Boat- 
man, Clara  V.  Worsham,  a  sister  of  Emory  Boatman,  conveyed,  by 
quitclaim  deed,  all  of  her  interest  in  the  real  estate  of  her  father,  in- 
cluding that  upon  which  Emory  Boatman  held  a  life  estate,  to  four  of 
her  brothers,  one  of  whom  was  Clarence  E.  Boatman.  Clarence  E. 
Boatman  died  intestate  February  14,  1899,  leaving  no  children,  but 
leaving  Ida  M.  Boatman,  his  widow.  Emory  Boatman  died  June  19, 
1901,  leaving  no  widow,  child,  or  children,  or  descendants  of  a  child  or 
children.  Ida  M.  Boatman  filed  her  bill  for  a  partition,  claiming  that 
her  deceased  husband  was  seised  of  a  vested  interest  in  the  lands  in 
which  Emory  Boatman  held  a  life  estate,  and  that,  by  the  death  of  her 
husband  without  children,  she,  as  his  widow,  became  seised,  under  the 
statute  of  descent,  of  one  undivided  half  interest  in  the  lands  upon 
which  Emory  Boatman  held  the  life  estate.  This  court  afiirmed  a 
decree  sustaining  the  contention  of  the  widow  of  Clarence  E.  Boat- 
man.^"  In  that  case,  on  page  420  of  198  111.,  page  83  of  65  N.  E.  a  defi- 
nition of  a  vested  remainder  w^as  given,  as  follows :  "A  vested  remain- 
der is  an  estate  to  take  effect  after  another  estate  for  years,  life  or  in 
tail,  which  is  .so  limited  that,  if  that  particular  estate  were  to  expire  or 
end  in  any  way  at  the  present  time,  some  certain  person  who  was  in 
esse  and  answered  the  description  of  the  remainderman  during  the  con- 
tinuance of  the  particular  estate  would  thereupon  become  entitled  to 
the  immediate  possession,  irrespective  of  the  concurrence  of  any  collat- 
eral contingency." 

This  definition  is  not  erroneous  when  all  of  the  language  embraced 
within  it  is  properly  considered.  The  definition,  however,  is  very  er- 
roneous and  misleading  unless  the  modifying  clause  introduced  by  the 
last  eight  words  employed  is  constantly  kept  in  mind.  The  subsequent 
treatment  of  the  question  involved  in  that  case  shows  that  the  court  ap- 
plied the  definition  given  without  considering  that  the  death  of  the  life 
tenant  leaving  children  surviving  him  was  the  "concurrence  of  a  col- 
lateral contingency,"  which,  under  the  definition  given,  prevented  the 
interest  of  the  brothers  and  sisters  of  Emory  Boatman  from  being  a 

30  See,  also,  Burton  v.  Gagnon,  180  111.  345,  54  N.  E.  279;  Chapin  v.  Nott. 
203  111.  341,  07  X.  E.  8.33;  KiuUlell  v.  Wren,  208  111.  SOS,  70  N.  E.  751;  Orr 
V.  lutes.  209  111.  222,  70  N.  E.  731;   8  III.  Law  Rev.  313-322. 


Ch.  4)  CONTINGENT   REMAINDERS  85 

vested  remainder.  There  was  in  that  case,  as  there  is  in  the  case  at 
bar,  a  collateral  contingency  to  be  taken  into  account ;  that  is,  the  death 
of  the  life  tenant  without  leaving  surviving  children  before  the  remain- 
der could  become  vested.  This  contingency  is  a  dubious  and  uncertain 
event.  It  could  not  be  known  until  the  death  of  the  life  tenant  whether 
this  contingency  would  happen;  hence  the  remainder  was  contingent  in 
the  Boatman  Case  as  it  is  in  this.  In  this  respect  the  Boatman  Case  is 
out  of  harmony  with  our  previous  decisions,  as  well  as  the  great  weight 
of  authority  outside  of  this  state.  See  24  Am.  &  Eng.  Ency.  of  Law 
(2d  Ed.)  p.  418.  In  so  far  as  the  Boatman  Case  seems  to  lay  down  the 
rule  that  a  devise  to  one  with  remainder  in  fee  to  his  children  who  may 
survive  him,  with  a  devise  over  to  another  in  case  the  life  tenant  dies 
leaving  no  children,  creates  a  vested  interest  in  remainder  in  the  last 
devisee,  that  case  is  overruled.  The  case  of  Chapin  v.  Xott,  203  111. 
341,  67  N.  E.  833,  in  so  far  as  it  is  based  on  the  Boatman  Case  on  this 
point,  must  be  regarded  as  unsound.  The  remainder  created  by  the 
devise  over  in  such  case  is  contingent  upon  the  death  of  the  life  tenant 
without  leaving  children.  That  this  is  the  proper  construction  of  a 
clause  in  a  will  or  deed  is  recognized  by  many  decisions  of  this  court, 
among  which  the  following  may  be  cited  :  City  of  Peoria  v.  Darst,  lUl 
111.  609;  Smith  v.  West,  supra;  AlcCampbell  v.  Mason,  151  111.  500. 
38  N.  E.  672;  Furnish  v.  Rogers,  154  111.  570,  39  N.  E.  989.  In  the 
case  last  above  cited  the  clause  in  the  will  involved  was  as  follows : 
"I  give  and  bequeath  to  my  grand-niece,  Jessie  Starkweather,  *  '''  * 
my  house  and  two  lots  in  Sycamore,  -  *  *  also  thirty-two  acres  in 
]\Iayfield,  DeKalb  county,  111.,  and  $500,  all  of  which  is  to  go  to  her 
children  should  she  marry.  If  she  should  die  childless,  then  it  is  to  be 
divided  between  her  mother  and  the  rest  of  my  grand-nieces  and  neph- 
ews who  will  appear  and  give  evidence  of  such."  It  was  held  that  un- 
der the  foregoing  clause  Jessie  Starkweather  took  a  life  estate,  and  that 
the  remainder  created  by  the  devise  over  was  contingent  on  her  mar- 
riage and  the  birth  of  children  who  survive  the  life  tenant.  In  dis- 
posing of  that  case  this  court,  speaking  by  ]\Ir.  Justice  Phillips,  on 
page  571  of  154  111.,  page  990  of  39  N.  E.,  said:  "The  language  em- 
ployed designates  the  children  ^s  those  who  talce  the  remainder,  and  the 
estate  does  not  vest  in  them,  as  an  absolute  fee-simple  title  to  them  and 
their  heirs  forever,  until  the  death  of  Jessie,  as  it  is  further  provided 
that,  if  she  die  childless,  the  estate  is  to  be  divided  among  her  mother 
and  the  rest  of  the  testator's  grandnieces  and  nephews,  etc.,  whose  es- 
tate is  contingent  upon  the  death  of  Jessie  without  a  surviving  child  or 
children  or  the  descendants  of  such  child  or  children,  in  which  case 
the  takers  of  the  remainder  are  subsituted  for  surviving  children.  By 
the  first  clause  of  the  will  Jessie  Starkweather  takes  an  estate  for  life 
in  the  house,  lots,  and  land  and  in  the  $500  therein  bequeathed.  The 
remainder  is  a  concurrent,  contingent  remainder  with  a  double  aspect, 
to  be  determined  immediately  upon  the  death  of  Jessie,  as  at  that  mo- 


86  CLASSIFICATION   OF  FUTURE   INTERESTS  (Part  1 

ment  it  will  vest  in  her  child  or  children,  or  the  descendants  of  such 
child  or  children,  that  survive  her,  and,  in  default  of  such  survival,  the 
remainder  would  vest  in  the  mother  of  Jessie  and  the  other  grand- 
nieces  and  nephews  of  the  testator" — citing  Dunwoodie  v.  Reed,  3  Serg. 
&  R.  (Pa.)  435,  and  City  of  Peoria  v.  Darst,  supra.  The  law  as  laid 
down  in  the  Rogers  Case,  and  the  others  above  cited  in  line  with  it,, 
furnishes  the  correct  rule  of  decision  in  the  case  at  bar.  The  second 
clause  of  the  will  of  George  Golladay  gave  his  wife  a  life  estate  with  a 
contingent  remainder  with  a  double  aspect,  to  be  determined  upon  the 
deatlTDf  "the  life  tenant.  '  "At  the  time  of  her  death  sKe'TeTt'no  cfiitdren 
surviving  her.  The  devise  over  to  the  heirs  of  Moses  Golladay  there- 
fore took  effect  as  a  fee-simple  interest  upon  the  falling  in  of  the  life  es- 
tate. The  daughter  of  Nancy  Golladay  who  died  before  her  mother, 
and  such  of  the  heirs  of  jMoses  Golladay  as  predeceased  the  life  tenant, 
had  no  interest  in  the  premises.  William  Golladay  was  a  son  of  Aloses 
Golladay.  As  already  shown,  he  made  a  warranty  deed  purporting  to 
convey  his  interest  in  the  premises  to  Henry  H.  Fuller  and  Ross  R 
Fuller  several  years  before  the  death  of  the  life  tenant.  Appellants 
contend  that  this  deed  operated  as  a  conveyance  of  the  interesFof  Wil- 
liam  Golladay,  and  that,  if  said  deed  was  otherwise  inoperative,  it 
should  be  given  eft'ect,  by  way  of  estoppel,  against  the  assertion  of  ti- 
tle by  the  complainants,  who  are  the  children  of  William  Golladay. 
This  contention  cannot  be  sustained.  William  Golladay  died  before 
the  life  tenant.  No  title  ever  vested  in  him.  His  children  are  not  es- 
topped by  the  covenants  in  this  deed  for  the  reason  that  they  are  not 
asserting  a  title  by  descent  from  their  father,  but  are  claiming  under  the 
will  of  George  Golladay  as  heirs  of  Moses  Golladay.^ ^  A  contingent 
remainder  may  be  transferred  by  warranty  deed,  under  our  statute,  so 

31  This  would  seem  to  ,be  a  following  of  the  common-law  rule  that  the 
descent  of  a  remainder  is  traced  from  the  first  purchaser — that  is  to  say,  the 
orij-'inal  remainderman— in  lieu  of  the  person  last  seised,  so  that,  upon  the 
life  tenant's  death,  those  persons  were  entitled  who  were  then  heirs  of  Moses 
(Jolladay.  the  remainderman,  as  in  the  following  cases:  Barnitz  v.  Casey,  7 
("ranch  (U.  S.)  456,  3  L.  Ed.  40.3;  Buck  v.  Lantz.  49  Md.  439;  Garrison  v. 
Hill.  79  Md.  75,  28  Atl.  1062,  47  Am.  St.  Rep.  363;  Jenkins  v.  Bonsai.  116 
Md.  629,  82  Atl.  229 ;  Payne  v.  Rosser,  53  Ga.  662 ;  Lawrence  v.  I'itt,  46  N.  C. 
344. 

It  has  been  held,  however,  under  American  statutes  of  descent  that  the 
common-law  rule  has  been  changed,  and  that  descent  is  traced  from  the  per- 
son last  entitled,  so  that  on  Moses  Golladay's  death  his  contingent  remainder 
passed  by  descent  to  his  heirs,  including  William,  and  upon  William's  death 
his  interest  passed  by  devise  to  his  children,  the  complainants,  as  his  heirs 
at  law,  as  in  the  following  cases:  Hicks  v.  Pegues,  4  Rich.  Eq.  (S.  C.)  413; 
Kean's  Lessee  v.  Hoffecker,  2  Har.  (Del.)  103,  113,  29  Am.  Dec.  336.  See, 
also,  the  following  cases,  where  the  remainder  or  reversion  descending  was 
vested  and  descent  was  traced  from  the  person  last  entitled:  Cook  v.  Ham- 
mond. 4  Mason  (U.  S.)  407,  4S8.  Fed.  Cas.  No.  3,150:  Lakev  v.  Scott.  l."»  X. 
Y.  Wkly.  Dig.  148;  Moore  v.  Rake,  26  N.  J.  Law,  574,  582;  Oliver  v.  Powell, 
114  (Ja.  592.  600,  40  S.  E.  826;  Cote's  Appeal,  79  Pa.  235;  Hillhouse  v. 
Chester,  3  Day  (Conn.)  166,  210,  3  Am.  Dec.  265;  Early  v.  Early,  134  N.  C. 
258,  46  S.  E.  .~)03.  Tbis  was  the  rule  regularly  applied  where  personal  prop- 
erty was  involved.     Hillhouse  v.  Chester,  3  Day  (Conn.)  166,  210,  3  Am.  Dec. 


Ch.  4)  CONTINGENT  REMAINDERS  87 

as  to  vest  the  title  in  the  grantee.^-  Kurd's  Rev.  St.  1905,  c.  30,  § 
7;  Wadhanis  v.  Gay,  73  111.  415;  Walton  v.  Follansbee,  131  111.  147, 
23  N.  E.  332.  But,  where  the  grantor  of  such  an  interest  dies  before 
the^  contingency  happens  upon  which  the  estate  is  to  yf 'i^i  "'^tVii'ngr  pa<t«;- 
erti|_sudi-dee4r  ThBRias  v.  Miller,  161  111.  60,  43  N.  E.  848.  Had 
William  Golladay  survived  the  life  tenant,  appellants  would  have  suc- 
ceeded to  his  share  in  this  estate.  In  that  event  his  deed  would  have 
been  binding  upon  him  and  his  heirs  after  his  death.  The  c^nvey- 
ance  by  John  Knock,  Jr.,  to  Henr}^  H.  Fuller  is  valid  under  the  au- 
tKbritl^s^which  huTIify~lhe~deecr  oT  William  Golladay.  John  Knock, 
Jr.,*5Trrvived  the  life  tenant.  The  court  below  correctly  held  that  H. 
H.  Fuller  was  entitled  to  the  share  of  John  Knock,  Jr.  This  is  the 
only  interest  he  has  in  this  estate.  The  other  appellant  Ross  R.  Fuller, 
who  claims  under  the  deed  of  William  Golladay,  has  no  interest  what- 
ever. 

There  is  no  error  in  the  decree  of  the  circuit  court.  The  decree  will 
be  affirmed. 

Decree  affirmed. ^^ 

Dunn,  J.,  took  no  part  in  the  decision  of  this  case. 

265;  Thompson  v.  Sandford,  13  Ga.  238;  Cote's  Appeal,  79  Pa.  235.  Contra: 
Jenkins  v.  Bonsai,  IIG  Md.  G29,  82  Atl.  229. 

North  V.  Graham,  235  111.  178,  85  N.  E.  267,  18  L,  R.  A,  (N.  S.)  624,  126  Am. 
St.  B.e\).  189,  would  seem  to  have  settled  the  rule  in  Illinois  in  favor  of  trac- 
ing the  descent  from  the  person  last  entitled  as  in  the  above  class  of  cases. 

If,  then,  the  complainants  took  as  heirs  of  William  Golladay,  why  were 
they  not  bound  by  the  warranty  of  their  ancestor?    See  3  111.  L.  R.  373. 

St:  With  regard  to  the  effect  of  the  warranty  to  pass  the  title,  see  3  111.  Law 
Rev.  373. 

In  Blanchard  v.  Brooks,  12  Pick.  (Mass.)  -17,  a  deed,  with  general  warranty 
of  "all  his  [the  grantor's]  right,  title  and  interest  in"  the  land  conveyed,  did 
not  pass  the  contingent  remainder,  and  the  warranty  did  not  transfer  the 
title  by  estoppel  when  the  remainder  vested. 

33  Note  ox  the  Extinguishment  of  Fxtture  Interests  by  Release. — Ex- 
ecutory and  contingent  future  interests  may  be  released  by  the  holder.  Such 
releases,  where  they  operate  merely  to  extinguish  the  future  interest,  are 
valid  for  this  purpose.  Fearne,  C.  R.  421,  u.  (d),  423;  2  Preston  on  Convey- 
ancing, 26S,  269,  392,  471,  473.  Tims  a  contingent  remainder  after  a  life  es- 
tate can  be  released  to  the  reversioner  and  thereby  extinguished.  2  Washburn 
on  Real  Property  (6th  Ed.)  528;  Williams  on  Real  Property  (17th  Int.  Ed.) 
422 ;  Caraher  v.  Lloyd,  2  Com.  (Australian)  Rep.  480.  So  the  holder  of  a 
shifting  executory  interest  cutting  short  a  preceding  fee  simple  can  release 
to  the  holder  of  the  preceding  fee  and  thereby  extinguish  the  future  inter- 
est. Williams  v.  Esten,  179  111.  267,  53  N.  E.  562;  Smith  v.  Pendell,  19  Conn. 
107,  48  Am.  Dec.  146;  Fortescue  v.  Satterthwaite,  1  Ired.  (23  N.  C.)  566; 
Lampet's  Case.  10  Coke,  48a,  48b;  In  re  Coates  Street,  2  Ashm.  (Pa.)  12; 
Jeffers  v.  Lampson,  10  Ohio  St.  101 ;  Miller  v.  Emans,  19  N.  Y.  384 ;  D'Wolf  v. 
Gardiner,  9  R.  I.  145.  But  cf.  Edwards  v.  Varick,  5  Denio  (N.  Y.)  664;  Pel- 
letreau  v.  Jackson,  11  Wend.  (N.  Y.)  110,  and  Jackson  v.  Waldrou,  13  Wend. 
(X.  Y.)  178,  where  the  present  holder  in  fee  and  the  one  having  the  executory 
de^^se  over  united  in  a  deed,  and  where  it  was  held  that  the  deed  was  in- 
effective so  far  as  the  future  interest  was  concerned. 

The  release,  however,  by  the  son  of  the  executory  devisee  in  the  lifetime 
of  his  parent,  is  entirely  ineffective.     Dart  v.  Dart,  7  Conn.  250. 

Quiere:  Whether  the  holder  of  the  contingent  future  interest  can,  under 
the  guise  of  a  release,  transfer  the  future  interest  to  a  life  tenant  so  as  to 


88  CLASSIFICATION  OF  FUTURE   INTERESTS  (Part  1 

^TNA  LIFE  INS.  CO.  v.  HOPPIN. 

(U.  S.  Court  of  Appeals,  Seventh  Circuit,  1914.    214  Fed.  928,  131  C.  C.  A.  224.) 
See  post,  p.  136,  for  a  report  of  the  case.^* 


BLANCHARD  v.  BLANCHARD. 
(Supreme  Judicial  Court  of  Massachusetts,  18G1.    1  Allen,  223.) 

Petition  for  partition,  in  which  the  petitioner  claimed  two  undi- 
vided fifth  parts  of  the  estate  described.  At  the  trial  in  the  Superior 
Court  the  following  facts  were  proved. 

William  Blanchard,  the  former  owner  of  the  premises,  died  in  1840, 
leaving  a  widow  and  ten  children ;  and  his  will,  after  a  devise  to  his 
wife  of  all  the  income  of  all  his  real  and  personal  property  during 

enlarge  the  interest  of  the  life  tenant  by  the  addition  to  it  of  the  future  in- 
terest. See  cases  put  in  Lampet's  Case,  10  Coke.  51.  and  Striker  v.  Mott,  28 
N.  y.  82 ;  Caraher  v.  Llnvd.  2  Com.  (Australian)  Rep.  4S0 ;  Williams  y.  Esten, 
179  Til.  267,  53  N.  E.  562;    Ortmayer  v.  Elcock,  225  111.  342.  80  N.  E.  .3.39. 

Where  several  are  tenants  in  common  in  fee,  with  a  gift  over  to  the  others 
in  certain  events,  and  they  exchansje  deeds  by  way  of  partition,  it  has  been 
held  that  each  takes  his  portion  discharged  of  the  gift  over.  In  re  Coates 
Street,  2  Ashm.  (Pa.)  12.  But  the  contrarv  was  held  in  Thompson  t.  Becker, 
194  111.  119,  62  N.  E.  558. 

3  4  Accord  (on  the  point  of  inalienability  of  the  contingent  remainder  by 
execution  sale):  Watson  v.  Dodd,  68  N.  C.  528;  Id.,  72  N.  C.  240;  Taylor 
v.  Taylor,  118  Iowa,  407.  92  N.  W.  71 ;  Young  v.  Young,  89  Va.  675,  17  S.  E, 
470,  23  L.  R.  A.  642;  Nichols  v.  Guthrie.  109  Tenn.  535,  73  S.  W.  107;  Hender- 
son V.  Hill,  77  Tenn.  (9  Lea)  26;  Roundtree  v.  Roundtree,  26  S.  C.  450,  471, 
2  S.  E.  474 ;  Mittel  v.  Karl.  133  111.  65,  24  N.  E.  553,  8  L.  R.  A.  655 ;  Temple 
v.  Scott.  143  111.  290,  32  N.  E.  366 ;  Phayer  v.  Kennedy,  169  111.  360,  48  N.  E. 
828 ;  Madison  v.  Larmou,  170  111.  65.  48  X.  E.  556,  62  Am.  St.  Rep.  356 ;  Speng- 
ler  v.  Kuhn.  212  111.  186,  72  N.  E.  214;  Robertson  v.  Guenther,  241  111.  511, 
89  N.  E.  689,  25  L.  R.  A.  (N.  S.)  887.  Cf.  White  v.  McPheeters,  75  Mo.  286, 
292. 

The  rule  of  the  principal  case  applies  to  guardian's  sales.  Furnish  v. 
Rogers,  1.54  111.  5(i9,  39  N.  E.  9s9;  Hill  v.  1111.  2(>4  111.  219,  106  N.  E.  262. 
See,  also,  Kingman  v.  Harmon,  131  111.  171,  23  N.  E.  430. 

On  the  other  hand,  a  A'ested  remainder  is  freely  alienable  by  all  modes  of 
conveyance.  O'Melia  v.  Mullarky,  124  111.  500,  17  N.  E.  36;  Boatman  v. 
Boatman,  198  111.  414,  65  N.  E.  81 ;  Ducker  v.  Burnham,  146  111.  9,  34  N.  E. 
5.58,  37  Am.  St.  Rep.  135;  Railsbaok  v.  Lovejoy,  116  111.  442,  6  N.  E.  504; 
Brokaw  v.  Ogle,  170  111.  115,  48  N.  E.  394, 

Note  on  the  Tp.eatjient  in  Equity  of  Conveyances  of  Reversions  and 
Otiieb  Futuke  Interests,  Whether  Vested  or  Contingent. — The  English 
Court  of  Chancery  regularly  set  aside,  if  there  was  any  inadetiuacy  in  the 
consideration  given,  conveyances  of  reversions  and  vested  remainders  de- 
pendent upon  the  falling  in  of  a  life  estate,  even  when  the  conveyance  was 
made  by  a  mature  adult,  who  know  exactly  wJiat  he  was  about,  and  there 
was  no  fraud  whatsoever.  Gowland  v.  De  Faria,  17  Ves.  Jr.  20;  Ilincksujan 
V.  Smith,  3  Russ.  434;  Edwards  v.  Burt,  2  De  G.,  M.  v<c  G.  55;  Boothby  v. 
Boothby,  15  Beav.  212;  Salter  v.  Bradshaw,  26  Beav.  161;  Bromley  v.  Smith, 
26  Beav.  644;  Foster  v.  Roberts,  29  Beav.  467;  Jones  v.  Picketts.  31  Beav. 
130;    Nesbitt  v.  Beriidge,  32  Beav.  282;    13  Yale  Law  Journal,  228. 

i'or  legislntion  abolishing  the  rule  of  inalienability  of  contingent  remainders 
and  other  future  interests,  see  8  &  9  Vict.  c.  106,  §"  6 ;    1  111.  Law  Rev.  380. 


Ch.  4)  CONTINGENT  REMAINDERS  89 

her  natural  life,  contained  the  following  clause:  "Thirdly,  I  give  and 
bequeath  t^my  beloved  daughter  Elizabeth  Ford  Blanchard,  to  my 
daughter  Mary  Jane  Blanchard,  to  my  daughter  Anna  Uawson  MoF- 
risoiTlBlanchard,  to  my~  sonHenry^BlanchariL  and  my  _soii_Samuel 
Orne^Blanchard,  all  the  property  both  real  and  personal  that  may  be 
left  aFThe  derrth  of  m^r-Avife^__to_  be  dTyTded  equally^  between  the_last 
five  named  children.  And  pro\'ided,  furthermore,  that  if_  any  of  the 
lasl~five  namecrctiTldren  die  before  my  wife,  then  the  property  to  be 
equally  divided  between  tlTe~siTrvivors^_except  they  should  leave  issue, 
in  that  case  togo  to  said  issuejrovided  the  said  issue  be  legitimate." 
The  testator's  widow  died  inTSS/.  The  share  of  the  daughter  Mary 
Jane  was  conve}^ed  to  the  petitioner  by  deed  dated  May  24,  1858. 
The  petitioner.  bY.jl££d.  dated_jiily_25,  1842,  conveyed  to  his  mother 
all  his  right,  title  and  interest  in  and  to  the  real  and  personal  estate 
of  his  late  father. 

Upon  these  facts,  Rockw^ell,  J.,  ruled  that  Henry  DlanchardjookjiQ 
interest  in  the  premises,  under  his  father's  will,  which  he  could_con- 
vey~in_the  Iiietime~Qf  his  another,  and  that  his  deed  to  his  mother  con- 
veyed no  interest  therein,  and  that  he  was  entitled  to  hold  two  fifths 
of  the  premises  ;~  and  the  jury  found  a  verdict  accordingly.  The  re- 
spondents alleged  exceptions. 

Hoar,  J.  The  will  of  William  Blanchard  devised  to  his  wife  Eliza- 
beth all  the  income  of  all  his  real  and  personal  property  during  her 
natural  life,  and  then  devised  as  follows: 

"Thirdly,  I  give  and  bequeath  to  my  beloved  daughter  Elizabeth 
Ford  Blanchard,  to  my  daughter  Mary  Jane  Blanchard,  to  my  daugh- 
ter Anna  Dawson  Alorrison  Blanchard,  to  my  son  Henry  Blanchard, 
and  my  son  Samuel  Ome  Blanchard,  all  the  property  both  real  and 
personal  that  may  be  left  at  the  death  of  my  wife,  to  be  divided 
equally  between  the  five  last  named  children.  And  provided,  fur- 
thermore, that  if  any  of  the  last  five  named  children  die  before  my 
wife,  then  the  property  to  be  equally  divided  between  the  survivors, 
except  they  should  leave  issue,  in  that  case  to  go  to  said  issue,  pro- 
vided the  said  issue  be  legitimate."  The  testator  had  ten  children,  all  of 
whom  survived  the  wife. 

The  principal  question  presented  by  the  exceptions  is,  whether 
Henry  Blanchard.  during  the  life  of  his  motlTciytook  a  vested  or  con- 
tingent  interest  in  the  real  estate  of  his  father,  included  within  the 
terms  of  the  devise. 

The  language  used  is  not  wholly  free  from  ambiguity ;  and  the  case 
certainly  comes  very  near  the  dividing  line  between  vested  and  con- 
tingent remainders.  It  does  not  seem  probable  that  the  testator,  or 
the  person  by  whom  the  will  was  drawn,  had  any  very  distinct  no- 
tions or  purposes  upon  the  subject;  and  the  expressions  employed 
are  such,  that,  among  the  great  multiplicity  and  variety  of  adjudged 
cases,  some  may  undoubtedly  be  found  which  would  countenance 
either  construction. 


90  CLASSIFICATION   OF   FUTURE   INTERESTS  (Part  1 

The  gift  of  the  income  of  real  estate  for  life  is  a  gift  of  a  life  es- 
tnte  in^  tlie  lancl^  lUanchard  v.  li rooks,  YZ  I'lck.  66.  The  devise  to 
the  children  was  therefore  of  a  remainder,  vested  or  contingent,  or 
an  executory  devise.  It  is  a  settled  rule  of  law,  that  a  gift  shall  not 
be  deemed_Joj3e_an^^xecutory^^e^^  of  jtaking^ effect 

as^  a  remainder ;  and  it  is  equally  well  settlecHTliar  no  remainder  will 
be  construed  to  be  contingent  which  may,  consistently  with  the  inten- 
tio'n.  be  deemed  veste^d!  Blanchard  v.  Brooks,  ubi  supi-aT;  4  Kent, 
Coin.  (6th  Ed.)  202T~Shattuck  v.  Stedman,  2  Pick.  468 ;  Doe  v.  Per- 
ryn,  3  T.  R.  484  and  489,  note.  We  must  then  consider  whether  there 
is  anything  in  the  language  of  this  devise  which  shows  an  intention  to 
postpone  its  vesting  until  the  death  of  the  mother. 

The  first  clause  of  the  devise  to  the  children  is  certainly  sufficient, 
if  it  stood  alone,  to  create  a  vested  remainder  in  all  the  children.  The 
words  descriptive  of  the  property,  "all  the  property  both  real  and  per- 
sonal that  may  be  left  at  the  death  of  my  wife"  are  used  inartificially, 
and  in  their  ordinary  sense  would  have  no  proper  application  to  the 
devise  which  the  testator  was  making.  As_Jie  had  only  given  to  his 
wife  the  income  of  the  estate  for  her  life,  all  the  property  would  be 
left  at  her  dea^tli^  But  everi  if  we  may  suppose  that  it  w^as  in  the  tes- 
tator  s  mind  that  some  part  of  the  principal  of  the  personal  estate 
might  be  lost  or  consumed  while  his  wife  was  enjoying  the  income  of 
it,  undoubtedly  all  the  real  estate  must  be  left  at  her  death.  The 
words  "that  may  be  left"  add  nothing,  therefore,  to  the  meaning,  un- 
less  they  may  be  regarded  as  expressmg  the  idea  of  devismg  all__the 
estate  remaming^fter  the  wife's  estate  for  life.  It  would  then  stand 
as  the  ordinary  case  of  a  devise  to  the  wife  for  life,  remainder  in  fee 
to  the  five  children  at  her  death,  to  be  equally  divided  between  them. 
There  would  be  by  such  a  devise,  according  to  all  the  authorities,  a 
vested  remainder  created  in  them  as  tenants  in  common.  It  would 
vest  at  once  in  interest,  though  not  in  possession.  There  are  iiojAinols 
of  contingency,  such  as,  "if  they  shal]_be  living  at  her  death/'  or  "to 
sijch  ot  themas  shall  be"  liying^'Mhe  usual  and  proper  phrases  to 
constitute  a  condition  precedent;  but  a  direct  gift  of  all  the  property 
left  after  the  life  estate  previously  carved  out.  The  diffictilty  arise^s 
from  the  remaining  sentence,  which  is  a  proviso  containing  a  limita- 
tion ove7~6TThe  estate  tlTt3s  devised  to  the~cTiildren  respectively,  jrpon 
the  contingency  ot  ^itlier  of_thein_dying_before  their  mother,  either 
wiTh  or  without  issue!  Although  this  is  in  the  form  ot  a  proyiso^et 
there  afe~numerous  cases'lfrwhiclTalimitation  thus  expressedhas  been 
held_to  quality  in_its  inception  the  interest  or  "estate  before  devise  d , 
and_tojnake  that  contingent  which  would  otherwTse~have  been  vested. 
And  there  is  no~cIouBtthat  if  the  effect  of  this  clause  is  to  limit  the 
remainder  to  such  of  the  children  named  as  should  survive  their 
mother,  then  it  is  a  contingent  remainder.  And  this  is  the  construc- 
tion urged  on  behalf  of  the  petitioner. 

But  if,  on  the  other  hand,  it  can  be  regarded  as  a  devise  in  fee  to 


Ch.  4)  CONTINGENT  REMAINDERS  91 

the  five  children,  subject  to  be  divested  upon  a  condition  subsequent,^ 
with  a  limitation  over  on  the  hai)pcniny_^f  that  condition,  then  the 
chiTcTren  namecFtook  a  vested  reinainderJU-fee ;  the  limitation  over 
would  have  taken  effect,  if  at  all,  only  as  an  executory  devise;  and, 
as~tJ2.e  contingency  nev^  happened,  the  fee  became  absolute. 

Four  cases  only  were  cited  by  the  counsel  for  the  petitioner  in  favor 
of  the  former  construction.  Doe  v.  Scudamore,  2  Bos.  &  P.  289,  was 
the  case  of  a  devise  to  G.  L.,  the  testator?  heir-at-law  for  life,  and 
from  and  after  his  death  to  C.  B.,  her  heirs  and  assigns  forever,  m^ 
case  she  should  survive  and  outlive  the  said  G.  L.^_but_JlQt  otherwise, 
and  inTase  she  should  die  in  the  lifetime  of  the  said  G.  L.,  then  to 
G.  L.,  his  heirs  and  assigns  forever ;  and  it  was  held  that  the  devise 
to  C.  B.  was  of  a  contingent  remainder.  There  the  words  of  the  gift 
made  it  expressly,  and  in  the  first  instance,  dependent  upon  the_con- 
tirigenc^. 

In  Moore  v.  Lyons,  2.5  Wend.  (N.  Y.)  119,  a  devise  to  one  for  life, 
and  from  and  after  his  death  to  three  others  or  tO' tlie^survivors  or  sur- 
vivor of  them,  their  or  his  heirs  and  assigns  ^forever,  was  held,  in  the 
Court  of  Appeals,  to  give  a  vested  interest  to  the  remainder-men  at 
the  death  of  the  testator,  the  words  of  survivorship  being  construed 
to  refer  to  the  death  of  the  testator,  and  not  to  the  death  of  the  ten- 
ant  for  life.  It  had  been  conceded  in  the  Supreme  Court  that,  if  the 
survivors  at  the  death  of  the  tenant  for  life  had  been  intended,  the 
remainder  would  have  been  contingent.  Here,  too,  the  survivorship 
directly  qualified  the  gift,  and  it  was  not  easy  to  regard  it  as  a  sub- 
secfuent  condition  to  an  estate  previously  given.  But  Chancellor  Wal- 
worth, in  this  case,  was  of  opinion  that  the  remainders  would  have 
been  vested,  even  if  the  words  of  survivorship  had  been  taken  to  refer 
to  the  death  of  the  tenant  for  life ;  and  states  the  rule  to  be,  that 
"w^iere  a  remainder  is  so  limited  as  to  take  effect  in  possession,  if 
ever,  mimediatelv  upon  the  determination  of  a  particular  estate^  which 
e state  is  to  detf^'<"'"'in^  by  ^^  f^vent  that  must  unavoidably  happen  by 
the  efi^ux  of  time,  the  remainder  vests  in  interest  as  soon  as  the  re- 
mainder-man  is  in  ease-and  ascertained  ;  prnvided.  nnthinrnTiit  hisjrwn 
death  before  the  determination  of  the  particular  estate  will  prevent 
such  remainder  from  vesting  in  possessioril  Yet,  if  the  esfate~iFllm- 
ited~over  to  another  in  the  event  of  the  death  of  tlie  first  remainder- 
man before  the  determination  of  the  particular  estate,  his  vested  es- 
tate will  be  subject  to  be  divested  by  that  event,  and  the  interest  of 
the  substituted  remainder-man,  which  was  before  either  an  executoi"}^ 
devise  or  a  contingent  remainder,  will,  if  he  is  in  esse  and  ascertained, 
be  immediately  converted  into  a  vested  remainder." 

In  Hulburt  v.  Emerson,  16  Mass.  241,  the  devise  was  to  the  tes- 
tator's son  John,  liis  iieirs,  executors,  and  assigns,  subject  to  tlie  pay- 
ment of  a  legacy ;    but  in  case  John  should  leave  no  male  issue,  tlien^ 
one  half  to  be  ecjually  among  his  children,  and  the  other  half  equally 
among  all  the  surviving  children  of  the  testator.    This  was  held  to  give 


93  CLASSIFICATION  OF   FUTURE  INTERESTS  (Part  1 

John  an  estate  in  tail  male,  with  contingent  remainders  over;  and 
that  tlie^n-yivin^  children  were  sucli_as  should  be  iivmg  whenever 
John  died  without  male  issue.  No  reasons  are  given  by  the  court  for 
the" latter  opinion,  nor  autliorities  cited  to  support  it;  and  the  heirs 
of  the  children  who  survived  the  testator,  but  did  not  survive  John, 
were  not  parties  to  the  suit. 

The  case  of  Qlney  v.  Hull,  21  Pick.  311,  is  the  remaining  case,  and 
perhaps  the  strongest  in  favor  of  the  petitioner.  The  devise  was  to 
the  testator's  wjfe  so  long  as  she  remained  his  widow ;  and  should  she 
marry  or  die,  then  to  be  equally  divided  among  his  surviving  sons, 
\\- i lTi~eaCh  son  paying  sixty  dollars  to  his  daughters,  to  be  equally 
divided  among  them,  as  soon  as  each  son  might  come  in  possession, 
of  the  land.  This  court  decided  that  no  estate  vested  in  the  sons  un- 
til the  death  of  the  widow ;  and  in  the  opinion  great  stress  is  laid  upon 
the  provision  that,  "should  the  wife  marr}^  or  die,  the  land  then  should 
be  equally  divided  among  the  surviving  sons,"  as  indicating  that  the 
survivorship  had  reference  to  the  death  or  marriage  of  the  widqw. 
But  the  difference  between  that  case  and  the  case  at  bar  is  this,  that 
in  the  former  the  devise  fs  made  upon  the  contingency,  while  In  the 
latter  it  is  tirst  made"!^"?!!^  devisees  by  name,  "and  the  contiiigeTiry 
appears  only  in  a  subsequent  provisiqii,  which  may  consist  as  well  with 
the  previous  vesting  ot  the  remainder. 

'Knd  we  are  all  oT  opinion  that  the  case  before  us  falls  within  an- 
other class  of  cases,  wdiich  it  more  nearly  resembles,  and  where  the 
devise  has  been  held  to  create  a  vested  interest,  determinable  upon 
the  happening  of  the  contingency. 

Such  a  case  was  Bromfield  v.  Crowder,  1  New  Rep.  313,  where  the 
testator  devised  to  A.  for  life,  and  after  her  death  to  B.  for  Hfe,  and 
at  the  decease  of  A.  and  B.,  or  the  survivor,  gave  all  his  real  estate  to 

C,  if  he  should  live  to  attain  the  age  of  twenty-one;  but  in  case  he 
should  die  before  that  age,  and  D.  should  survive  him,  in  that  case  to 

D.  if  he  should  live  to  attain  twenty-one,  but  not  otherwise;  but  in 
case  both  C.  and  D.  should  die  before  either  of  them  should  attain 
twenty-one,  then  to  E.  in  fee.  It  was  held  by  all  the  judges  of  the 
Common  Pleas,  that  C.  took  a  vested  estate  in  fee  simple,  determina- 
ble upon  the  contingency  of  his  dying  under  the  age  of  twenty-one 
years,  the  intention  of  the  testator  being  apparent  to  make  a  condi- 
tion subsequent,  and  not  a  condition  precedent,  notwithstanding  the  use 
of  the  word  "if."  And  they  rehed  upon  Edwards  y.  Hammond,  3 
Lev.  132,  which  was  the  case  of  a  copyholder  who  "^^surrendered  ta 
the  use  of  himself  for  life,  and  after  to  the  use  of  his  eldest  son  and 
his  heirs,  if  he  live  to  the  age  of  twenty-one  years;  provided,  and 
upon  condition,  that  if  he  die  before  twenty-one,  that  then  it  shall  re- 
main to  the  surrenderor  and  his  heirs;"  and  it  was  held  tliat,  not- 
withstanding the  word  "if"  in  the  first  clause,  the  whole  showed  an 
intention  to  create  a  condition  subsequent.  Bromfield  v.  Crowder  was 
afterwards  affirmed  in  the  House  of   Lords. 


Ch.  4)  CONTINGENT  REMAINDERS  93 

In  Doe  V.  Aloore,  14  East,  601,  a  devise  of  real  estate  in  fee  to 
J.  M.  Avhen  he  attains  the  age  of  twenty-one ;  but  in  case  he  dies  be- 
fore twenty-one,  then  to  his  brother  when  he  attains  twenty-one ;  with 
like  remainders  over :  was  held  to  give  to  J.  ]\I.  an  immediate  vested 
interest,  and  that  the  dying  under  twenty-one  was  a  condition  subse- 
quent on  which  the  estate  was  to  be  divested.  Lord  EHenborough 
cited  Mansfield  v.  Dugard,  1  Eq.  Cas.  Ab.  195 ;  Edwards  v.  Ham- 
mond ;  Bromfield  v.  Crowder ;  and  Goodtitle  v.  Whitby,  1  Burr.  228 ; 
and  said  that  "these  authorities  were  attempted  to  be  distinguished, 
on  the  ground  that  they  were  cases  of  a  remainder  and  not  of  an  im- 
mediate devise ;  but  that  forms  no  substantial  ground  of  distinction : 
the  estate  vests  imm.ediately,  whether  any  particular  interest  is  caryed 
out  of  it  to  take  effect  in  possession  in  the  mean  time  or  not." 

Smither  v.  Willock,  9  Ves.  233,  was  the  case  of  a  bequest  of  per- 
sonal estate  to  the  testator's  wife  for  life,  and  from  and  after  her 
death  to  be  divided  between  his  brothers  and  sisters  in  equal  shares ; 
but,  in  the  case  of  the  death  of  any  of  them  in  the  lifetime  of  the 
wife,  the  shares  of  him  or  her  so  dying  to  be  divided  between  all 
and  every  his,  her,  or  their  children.  Sir  WilHam  Grant  decided  that 
the  shares  vested  in  the  brothers  and  sisters,  subject  only  to  be  di- 
vested in  the  event  of  death  in  the  life  of  the  testator's  widow,  leav- 
ing children. 

But  a  case  more  nearly  resembling  the  case  at  bar  is  Doe  v.  Xowell, 

1  M.  &  S.  327.  There  was  a  devise  to  J.  R.  for  life,  and  on  his  de- 
cease  to  and  among  his  children  equally  at  the  age  of  twenty-one,  and 
their  heirs,  as  tenants  in  common ;  but  if  only  one  child  should  live 
to  attain  such  age,  to  such  child  and  his  or  her  heirs,  at  his  or  her 
age  of  twenty-one ;  and  in  case  J.  R.  should  die  without  issue,  or  such 
issue  should  die  before  twenty-one,  then  over.  It  was  held  that  the 
children  of  J.  R.  took  vested  remainders ;  and  Lord  EHenborough  said 
that  the  case  of  Bromfield  v.  Crowder  was  very  fully  considered,  and 
was  a  conclusive  authority. 

In  Ray  v.  Enslin,  2  Mass.  554,  the  devise  was  to  the  wife  for  life, 
and  after  her  decease  to  the  testator's  daughter  and  her  heirs  forever. 
"But  in  case  my  daughter  should  happen  to  die  before  she  come  to 
age,  or  have  lawful  heir  of  her  body  begotten,"  then  one  third  to  his 
sister  and  two  thirds  to  his  wife,  and  their  heirs  forever.  It  was  held 
that  the  daughter  took  a  vested  estate  in  fee  simple  defeasible -upon  a 
contingency  reasonably  determinable.     See  also  Richardson  v.  Noyes, 

2  Mass.  56,  3  Am.  Dec.  24. 

These  cases,  with  many  others  depending  on  a  similar  principle, 
seem  to  us  sufficient  to  show  that  tjie  devise  to  Henry  Blanchard  was 
of  a  vested  remainder,  defeasible  on  a  condition  subsequent,  wliich  hF 
could 'convey  by  deed  m  tne  litetime  oi  his  motherT  This  would  be 
equally  true  whetlier  nis  remainder  was  in  tee  simple  or  in  tail.  Were 
the  other  construction  to  prevail,  it  would  follow  that,  if  the  tenant 
for  Hfe  should  have  forfeited  her  estate  by  waste,  the  whole  estate 


94  CLASSIFICATION   OF   FUTURE   INTERESTS  (Part  1 

would  have  gone  to  the  heirs  at  law,  which  is  obviously  inconsistent 
with  the  whole  intention  of  the  testator.  At  least  such  would  have 
been  the  effect  of  the  forfeiture  at  common  law,  though  in  this  Com- 
monwealth such  a  consequence  has  been  guarded  against  by  Statute. 
Rev.  Sts.  c.  59,  §  7. 

The  decision  of  this  question  renders  the  other  point,  respecting  the 
deed  of  Henry  Blanchard  to  his  mother,  of  no  importance. 

Exceptions  sustained.^^ 

3  5  Accord:  Jeflfers  v.  Lampson,  10  Ohio  St.  102;  Pingrey  v.  Rulon,  246  111. 
109.  92  X.  E.  592. 

If  the  limitations  be  to  A.  for  life,  remainder  to  the  children  of  A.  in  fee, 
but'  if  any  die  before  A.  leaving  children,  then  to  such  children  the  share 
which  their  parent  would  have  taken,  gives  the  child  or  childj-en  of  A.  upon 
birth  a  vested  and  alienable  remainder.  In  re  Rogers'  Estate,  97  Md.  674,  55 
Atl.  679 :  Moores  v.  Hare,  144  Ind.  573.  43  N.  E.  870 ;  Callison  v.  Morris,  123 
Iowa.  297,  98  N.  W.  780;  Smith  v.  West,  103  111.  332;  Siddous  v.  Cockrell.  131 
111.  6.53.  23  N.  E.  586;  Pingrey  v.  lUilon.  246  111.  109.  92  N.  E.  592;  Northern 
Trust  Co.  V.  Wheat  on,  249  111.  606,  94  N.  E.  980,  34  L.  R.  A.  (N.  S.)  1150; 
Haward  v.  Peavey,  128  111.  430,  439.  21  N.  E.  503,  15  Am.  St.  Rep.  120  (semble). 

If  the  limitations  be  to  A.  for  life,  remainder  to  the  children  of  A.  in  fee, 
but  if  A.  die  without  leading  children,  then  over  to  B.  and  his  heirs,  the  re- 
mainder to  the  children  is  vested.  Forsythe  v.  Lansing's  Ex'rs,  109  Kv.  518, 
59  S.  W.  854 ;  Ducker  v.  Eurnham,  146  111.  9,  34  N.  E.  558,  37  Am.  St.  Rep. 
135;  Hinrichsen  v.  Hinrichsen.  172  111.  462,  50  N.  E.  1.35.  But  see  Hill  v. 
■Hill.  264  111.  219,  106  N.  E.  262  (1914). 

In  New  York,  by  the  judicial  construction  of  a  statute  defining  vested  and 
contingent  remainders  (1  Rev.  St.  N.  Y.  pt.  2,  c.  1.  tit.  2,  §  13),  it  has  been 
held  that  a  remainder  is  alienable  by  a  deed  without  covenants,  when  made 
by  the  person  or  persons  who  would  be  entitled  at  the  moment  of  conveyance, 
if  the  life  estate  should  be  terminated  at  that  moment  by  the  death  of  the  life 
tenant,  ^^re  v.  Littel,  41  N.  Y.  66  (1869) ;  House  v.  Jackson,  50  N.  Y.  161 
(1872).  Burihls  is^ow  conceded  to  be  the  result  of  the  New  York  statute 
and  contrary  to  the  rule  of  the  common  law.  Smaw  v.  Young,  109  Ala.  528,  20 
South.  370  (1895). 

In  Connelly  v.  O'Brien,  166  N.  Y.  406,  60  N.  E.  20.  it  was  held,  however, 
that  where  the  limitations  were  to  the  widow  for  life  and  "then  to  such  of 
my  children  as  may  then  be  alive,  share  and  share  alike,"  and  where  a  child 
of  the  testator  had  survived  him  and  died  before  the  widow  leaving  a  child, 
the  plaintiff,  the  plaintiff  was  entitled  on  the  death  of  the  widow  because  it 
had  vested  in  her  parent  and  she  took  bv  descent  from  him. 

But  in  Hall  v.  La  France  Fire  Engine  Co.,  158  N.  Y.  570,  53  N.  E.  513, 
where  the  limitations  were  to  A.  for  life  "and  at  her  death  to  the  heir  or 
heirs  of  her  body  her  surviving."  and  where  at  the  date  of  the  deed  creating 
these  limitations  A.  had  a  child,  who,  however,  died  before  A.,  it  was  held 
that  the  heir  of  A.'s  deceased  child  had  no  interest  in  the  land  so  limited. 
The  court  called  the  remainder  to  the  heir  or  heirs  of  the  body  of  the  life 
tenant  "a  contingent  remainder." 

See,  also,  In  re  Moran's  Will,  118  Wis.  177,  96  N.  W.  367. 

Clarke  v.  Fay,  205  Mass.  228,  91  N.  E.  32S,  27  L.  R.  A.  (N.  S.)  4.>4  (1910), 
was  a  suit  in  equity  under  Rev.  Laws,  c.  159,  §  3,  cl.  7,  to  reach  and  apply 
to  the  payment  of  a  debt  due  to  the  plaintiff  from  the  principal  defendant 
the  Interest  of  that  defendant  under  the  will  of  his  grandfather.  It  appeared 
that  that  will  gave  the  residue  of  the  testator's  property  to  trustees,  and,  aft- 
er providing  for  certain  trusts,  directed  that  all  tbe  residue  of  his  estate 
should  \m  divided  into  as  many  equal  shares  as  there  should  be  at  the  time 
of  his  decease  children  of  his  then  living  or  deceased  leaving  issue,  and  then, 
after  providing  for  the  management  of  the  trust  and  the  payment  of  its  ex- 
penses, proceeded  as  follows:  "To  pay  over  the  residue  of  the  income  of  such 
share  to  the  child  for  whose  benefit  such  share  is  held,     *     *     *     for  and  dur- 


Ch.  4)  CONTINGENT  REMAINDERS  95 

ing  tbe  term  of  such  child's  natural  life  and  upon  such  child's  death  to  con- 
vey transfer  and  pay  over  the  principal  of  the  share  so  held  for  such  child's 
benefit  to  such  child's  lawful  issue  then  living  by  representation ;  but  if  such 
child  shall  die  without  leavinjr  lawful  issue  living  at  the  time  of  such  child's 
death  then  upon  such  child's  death  to  add  the  principal  of  tlie  share  held  for 
such  child's  benefit  equally  to  the  shares  held  for  the  benefit  of  my  other 
children  then  living,  *  *  *  provided  however  that  the  lawful  issue  then 
living  of  any  other  child  of  mine  who  shall  have  theretofore  deceased  shall 
take  and  have  (and  there  shall  bo  paid  and  conveyed  to  such  issue) — by  right 
of  representation  the  same  part  of  such  principal  which  would  have  been 
added  to  the  share  which  would  have  been  held  for  the  benefit  of  such  is- 
sue's deceased  parent  if  such  issue's  deceased  parent  was  then  living." 
When  the  bill  was  filed  the  father  of  the  principal  defendant  was  living.  De- 
fendant had  two  unmarried  sisters,  who  as  well  as  he  were  born  before  the 
death  of  the  testator.  He  had  had  five  aunts,  who  were  living  at  the  death 
of  the  testator,  one  of  whom  had  died,  leaving  issue,  one  of  whom  was  a 
childless  widow,  two  of  whom  were  married,  each  of  them  having  a  married 
son  without  is.sue.  and  one  of  whom  was  married  and  had  a  minor  unmar- 
ried son.  Held,  that  the  interest  of  the  principal  defendant  in  his  share  of 
the  fund  of  which  his  father  enjoyed  the  income,  although  his  enjoyment  of 
it  was  contingent  on  his  surviving  his  father,  was  assignable  property,  which 
could  be  reached  and  applied  under  the  statute,  but  that  his  interest  in  the 
funds  of  which  the  incomes  were  enjoyed  respectively  by  his  aunts,  and  a 
part  of  which  would  come  to  him  if,  after  his  father's  death  and  during  his 
own  lifetime,  any  of  his  aunts  should  die  without  leaving  issue,  was  not  prop- 
erty, but  a  mere  possibility  of  proiierty,  which  could  not  be  reached  under 
the  statute." 

MiSCELI.AXEOUS  LeGAI.  CONSEQUENCES  WHICH  DEPEND  UPON  THE  CHARACTEE 

OF  THE  Remainder  and  are  Often  Said  to  be  Determined  According  as  the 
Remainder  is  Vested  or  Contingent. — The  union  of  the  particular  estate 
and  the  contingent  remainder  in  the  same  person  will  not  cause  the  termina- 
tion of  the  particular  estate  (Cumraings  v.  Hamilton,  220  III.  480.  77  N.  E. 
264),  while  the  coming  together  of  a  particular  e.state  and  the  next  immedi- 
ate estate  in  remainder,  which  is  vested  and  larger  than  the  particular  estate, 
will  terminate  by  merger  the  particular  estate  and  cause  the  remainder  at 
once  to  vest  in  possession  (Bond  v.  Moore.  236  III.  576,  86  N.  E.  .jSG.  19  L.  R. 
A.  [X.  S.]  540;  Whitaker  v.  Wliitaker,  157  Mo.  342.  58  S.  W.  5;  Bovkin  v. 
Ancrum,  28  S.  C.  486,  G  S.  E.  305,  13  Am.  St.  Rep.  698).  This  rule  of  merger, 
it  is  believed,  is  based  upon  the  strictly  feudal  or  common  law  distinction 
between  vested  and  contingent  remainders. 

The  rule  against  iieriJetuities  only  requires  that  the  future  interest  shall 
vest  within  lives  in  being  and  twenty-one  years  after  its  creation.  "Vest" 
here  does  not  mean  vest  in  the  sense  of  being  non-contingent,  nor  does  it 
mean  vest  in  possession.  It  means  vest  in  the  feudal  or  common  law  sense  of 
that  term.  Hence  in  applying  the  rule  against  perpetuities  it  may  become  of 
vital  importance  to  determine  what  interests  are  vested  in  that  sense,  so  as 
to  determine  whether  the  future  interest  does  or  does  not  violate  the  rule 
against  perpetuities.  Madison  v.  Larmou.  170  111.  65.  48  X.  E.  556,  62  Am. 
St.  Rep.  356 ;  Howe  v.  Hodge,  152  III;  252,  38  X.  E.  1083 ;  Chapman  v.  Cheney, 
191  111.  574,  61  X.  E.  363. 

Thejiei^on  with  a  vested  remainder^ must  be  made  a  party  to  a  decree  in 
chancery  or  he  will  not  be  boundnby  it.  A  contingent  remainderman  may  ^e 
bound^b^-  ttte  decree~"by  repTesehtation.  McCampbell  v.  Mason,  151  III.  500, 
38  X.  E.^672TTemple-TT-Scottr-i4»  I-ttv-SQO,  32  X.  E.  366;  Thompson  v.  Adams. 
205  III.  552,  69  X.  E.  1.  This  may  refer  to  the  common  law  or  feudal  dis- 
tinction. 

If  the  remainder  be  subject  to  a  condition  precedent  in  form  that  the  re- 
mainderman to  take  must  survive  the  life  tenant,  then  if  the  remainderman 
dies  before  the  life  tenant  no  interest  passes  from  him,  for  he  obtained  noth- 
ing. On  the  other  hand,  if  the  remainder  be  not  subject  to  any  such  condi- 
tion precedent  of  survivorship  and  if  there  is  no  divesting  clause  operating  in 
the  events  which  happen,  the  remainderman  will  have  an  interest  trans- 
missible at  his  death.  The  question,  which  situation  exists,  is  fundamentally 
merely  one  of  construction.     What  is  the  meaning  of  the  language  u.sed'/     Is 


96  CLASSIFICATION   OF  FUTURE   INTERESTS  (Part  1 

CHAPTER  V 
LIMITATIONS  TO  CLASSES 


RULE  IN  WILD'S  CASE. 

Hawkins  on  Wills  (2d  Ed.)  243 :  A  devise  of  real  estate  to  A.  and 
his  children,  A.  having  no  children  at  the  time  ot  the  devise,  vests  jn 
A.  an  estate  tail ;  ''children"  being  construed  as  a  word  of  limitation. 
(TrttrfrCase.  b  Rep.  lob;   see  VVebtrvTByng,  2'K.  &  J.  669.) 

The  rule  does  not  applv  to  bequests  of  personal  estate.  (Audsley 
V.  Horn,  1  Ue"^  K  &  j".  226!) ^ 

'TThe  time  of  the  devise  appears  to  mean  the  date  of  the  will,"  and 
not  the  death  ot  the  testator.  (Butiar  v.  Bradtord7z  Atk.  22l>;  [Grieve 
V.  Grieve,  L-  R.  4X07180;  Scale  v.  Barker,  2  B.  &  P.  485;  Clifford 
V.  Koe,  5  A.  C.  at  p.  47L])^ 

Co.  Lit.  9^1  B.  having  divers  sonnes  and  daughters,  A.  giveth  lands 
to  B.  et  liberis  suis,  et  a  lour  heires,  the  father  and  all  his  chil3reh 
to  take  a  tee  simple  joyntl}^  by  torce  of  these  words  (their  heires) ; 
but  if  he  had  no  childe  at  the  time  of  the  feoffment,  tlie  childe  borne 
afterwards  shall  not  take. 


there  a  condition  precedent  of  survivorship  or  not?  Nevertheless,  if  the  re- 
mainder is  subject  to  a  condition  precedent  in  form  of  survivorship,  it  is, 
according  to  the  feudal  or  common  law  distinction,  a  contingent  remainder. 
On  the  other  hand,  if  it  is  not  subject  to  such  condition  precedent  of  sur- 
vivor.ship  it  is  vested  and  that  whether  it  be  subject  to  a  gift  over  or  not. 
Hence  the  purely  practical  question  of  construction  is  continually  dealt  with 
by  the  courts  and  judges  on  the  basis  of  whether  the  remainder  is  vested  or 
contingent  according  to  the  feudal  or  common  law  distinction. 

In  such  cases  the  courts,  not  being  faced  with  any  consequences  of  de- 
structibility  or  inalienability,  have  not  infrequently  reached  doubtful  results. 
Cuiumiugs  v.  Hamilton,  220  111.  480.  77  N.  E.  264;  People  v.  Byrd,  253  111. 
22.3,  97  N.  E.  293 ;    Drury  v.  Drury,  271  111.  3P.n.  Ill  N.  E.  140. 

It  is  clear  that  partition  cannot  be  had  by  a  contingent  remainderman,  but 
may  be  had  by  a  non-contingent  and  indefeusibly  vested  remainderman.  Rud- 
dell  v.  Wren,  208  111.  508,  70  N.  E.  751 ;  Dee  v.  Dee,  212  111.  338,  354,  72  N. 
E.  429.  It  may  not  l>e  permitted  to  a  remainderman  having  a  vested  re- 
mainder according  to  the  common  law  or  feudal  definition  if  that  remainder 
is  uncertain  ever  to  take  effect,  1)ecause  it  is  subject  to  a  gift  over  on  events 
wliich  may  happen  before  it  vests  in  possession.  Goodrich  v.  Goodrich,  219 
111.  426,  76  N.  E.  575 ;  Cummings  v.  Hamilton,  220  111.  480,  483,  77  N.  E.  264 
(as  to  180  acres),  semble;  Seymour  v.  Bowles,  172  111.  521,  50  N.  E.  122. 
Hence  the  question  of  whether  a  renin inder  may  be  partitioned  does  not  de- 
pend upon  the  aiiplication  of  the  purely  common  law  or  feudal  distinction  be- 
tween vested  and  contingent  remainders.     1  111.  Law  Rev.  184. 

1  The  rule  in  Wild's  Case  was  applied  in  Lofton  v.  Murchison,  80  Ga.  391, 
7  S.  E.  322.  It  was  held  to  have  tK^en  abolished  by  implication  by  the  stat- 
ute which  makes  a  devise  to  A.  simpliciter  prima  facie  the  devise  of  a  fee,  in 
Davis  V.  Ripley,  194  111.  399,  62  N.  E.  852,  and  Boehm  v.  Baldwin,  221  111.  59, 
77  N.  E.  454, 


Ch.  5)  LIMITATIONS   TO    CLASSES  97 

Sheppard's  Touchstone,  436:  I^one  devise  his  land  to  the  children 
of  I.  S.,  by  this  devise  the  children  that  TT^.  hath  at~tHe  time  of  the 
devise,  or  at  the  most  the  children  j^liat  I.  S.  hath  at  the  time  ^f  the 
deatfi^of  the  testator,  and  notany^f  them  that  shall  be  born  after  his 
death,  shall  take? 


SHEPHERD  v.  INGRAM. 

(High  Court  of  Chancery,  1764.     Ainb.  44S.) 

Mr.  Shepherd,  of  Exning  in  Cambridgeshire,  by  will  gave  all  his 
freehold,  leasehold,  and  copyhold  estates,  and  also  his  personal  estate, 
to_trustees.  to  hold  to  them,  their  executors,  administrators,  and  as- 
signs, in  trust  to  pay  certain  annuities  and  legacies  out  of  the  rents 
and  profits  of  his  personal  estate ;  and  in~case  of~want  of  sufficiency 
of  personal  estate,  then  out  of  the  rents  and  profits  of  his  said  real 
estate.  And  as  for  and  concerning  aM  the  rest,  residue,  and  remain- 
der of  his  said  real  and  personal  estate,  of  what  nature  or  kind  so- 
ever, after  provision  made  for  payment  of  the  said  annuities  and  lega- 
cies,  he  gave  the  same  to  such  child  or  children  as  his  daughter  France?* 
Gibson,  otherwise  Frances  Shepherd  (who  was  his  natural  daugh- 
ter, to  whom  he  had  given  the  greatest  part  of  his  estate),  should  have 
of  her  body  lawfully  begotten,  whether  male  or  female,  equally  tqbe 
divided  between  them,  share  and  share  alike,  taking  upon  them  jhe 
name  ot  ShepherdTbut  having  made  no  provision  for  the  disposal  of 
the  rest,  residue,  and  remainder  of  the  said  real  and  personal  estate, 
in  case  his  said  daughter  Frances  Gibson,  commonly  called  Frances 
Shepherd,  should  die  without  issue  ot  her  body  lawfully  to  be  begot- 
ten, then  he  gave  the  same,  after  payment  of  the  said  annuities  and 
legacies,  unto  Christopher  Jeaft'erson  and  Joseph  Fyke,  equally  to  be 
divided  between  them,  share  and  share  alike7  they  taking  the  name 
of  Shepherd. 

By  a  codicil,  26th  September  1744,  he  revokes  the  bequest  to  Jeaf- 
ferson,  and  declares,  that  he  shall  have  no  benefit  from  the  residue 
of  his  estate,  and  devises  the  same  to  Samuel  Shepherd  and  the  said 
Joseph  Pyke,  equally  to  be  divided  between  them,  for  their  lives ;  and 
directed  that  the  annuities  which  should  fall  in  should  go  back  to  the 
residuum  of  his  real  and  personal  estate,  and  be  equally  divided  be- 
tween Samuel  Shepherd  and  Pyke,  provided  his  said  daughter  should 
die  without  leaving  issue  of  her  body  lawfully  begotten;  but  in  case 
his   said   daughter   should   leave  at  her  death   any  child  or   children 

2  Singleton  t.  Gilbert,  1  Cox,  68;  s.  c.  1  B.  C.  C.  542,  note;  Scott  v.  Har- 
"wood,  5  Mad.  332  (jioes  on  the  construction  to  be  given  the  devise) ,  Cooli  v. 
Cook,  2  Vern  545  (the  after-born  children  were  included; ;  Hill  v  Chapman, 
3  Bro.  C.  C.  391.  post,  page  25i>  (personal  property) ;  Faloon  v.  Simshauser, 
130  111.  G49.  22  N.  E.  835  (conveyance  by  deed ;  after-born  child  excluded). 
4  Kales  Pbop. — 7 


98  CLASSIFICATION  OF  FUTURE   INTERESTS  (Part  1 

then  such  annuities  as  should  fall  in  should  be  divided  among  such 
children,  or  go  to  such  only  child:  and  his  will  was,  and  he  desired 
that  tlie  said  codicil  should  be,  and  be  adjudged  to  be  part  and  parcel 
of  his  said  last  will  and  testament. 

The  bill  was  brought  bv  Frances  Gibson,  who  was  then  under  age, 
and  unmarried,  to  establish  tlie  will,  and  to  have  the  opinion  ofTTie 
Court,  and  directions  with  respect  to  the  trusts ;  and  upon  hearing  of 
the  cause,  on  25th  Tune  1750,  before  Lord  Hardwicke,  the  Uourt  di- 
rected,  That  if  there  should  be  any  surplus  of  interest  arising  on  any 
of  the  funds,  after  payment  by  the  said  decree  directed  to  be  made 
thereout,  the  same  should  be  laid  out  in  South  Sea  annuities,  subscribed 
in  the  name  of  the  Accountant  General,  to  the  credit  of  the  said  cause, 
on  account  of  the  personal  estate,  subject  to  the  further  order  of  the 
Court;  and  declared,  that  the  same  ought  to  go  according  to  the 
bequest  in  the  testator's  will  of  the  residue  of  his  personal  estate ;  and 
after  directing,  in  case  of  a  deficiency  of  the  personal  estate  to  answer 
the  legacies  and  annuities,  that  such  deficiency  should  be  made  good 
out  of  the  rents  and  profits  of  the  real  estates,  his  Lordship  ordered, 
that  such  rents  and  profits  should  from  time  to  time  be  paid  into  the 
Bank,  in  the  name  of  the  Accountant  General;  and  that  the  surplus 
should  be  accumulated  and  laid  up ;  when  the  same  should  amount  to 
a  competent  sum,  be  placed  "out^t  interest_in  the  ArcountkTit^  Gen- 
eralVrrame,  and  subject  to  the  contmgencyin  the  testator's  will ;  and_ 
that  the  iiittiesL  andTlividends  that  should  arise  therefrom  should, 
wHen  thejT'amounr  tu  a  TompetentSUiiTp  be  placed  out  iTTTTke  mal>~ 
ner^  And  his  Lordsmp  declareH'That  no  part  of  the  surplus  rents 
and  profits  of  the  testator's  real  estates  was  descended  to,  or  belonged 
to  Elizabeth  Rogers,  the  heir  at  law,  but  the  same  was  subject  to  the 
trusts  and  contingencies  in  the  will ;  and  any  person  that  might  be 
intitled  thereto,  according  to  such  trusts  and  contingencies,  was  to 
be  at  liberty  to  apply,  as  any  of  such  trusts  should  arise,  or  contingen- 
cies happen. 

Afterwards  Frances  Gibson  married  Ingram,  now  Lord  Ir- 
win, on  2d  August,  1758,  and~there_are^three  children  of  the  marriage, 
all  infants. 

Bill  by  the_plaintifl:s,  being  two  of  those  children,  the  other  being 
made  a  defendant,  to  have  an  account  of  the  profits  of  the  residuum 
of  the  real  and  personal  estate,  as  constituted  under  the  former  de- 
cree, from  the  birth  of  the  eldest  child ;  and  that  so  much  as  became 
due,  from  the  birth  of  the  first  child  till  the  second  was  born,  may 
be  declared  to  belong  to  the  first ;  and  after  the  birth  of  the  second, 
till  a  third  was  born,  to  belong  to  the  first  and  second  child ;  and  that 
so  much  as  became  due  from  the  birth  of  the  thir^i  child,  may  be  de- 
clared to  belong  to  all  the  three  children. 

For  the  plaintiffs  it_was  argued.  That  the  residne  wgs  givep  tn  the 
children  defeasible,  in  case  they  should  all  die  before  Lady  Irwin  their 
mother?    For  the  defendants,  Shc"plicrd  and  j-'yke,  it  was  argUed^That 


Ch.  5)  LIMITATIONS   TO    CLASSES  99 

the  children  took  no  interest  in  the  residuum  in  the  life-time  of  their 
mother,  hut  that~the  wholewas  continp^ent  till  h^r~death ;  andi  that  the 
interest  and  protits  were  Intended  to  accumulate  in  the  mean  time. 

Lord  Chancellor  Xorthington  was  very  clear  of  opinion,  that 
the  daughters  took  a  defeasible  interest_in_tbe  residue;  and  put  the 
case^oTa  legal  devise  of  the  residue^to  the  daughters,  with  a  subse- 
quent clause  declaring,  that  if  all  the  daughters  should  die  in  the  life- 
time of  their  mother,  then  the  residue  should  go  over,  that  would  be 
an  absolute  devise  with  a  defeasible  clause,  and  the  daughters  would 
in  that  case  be  clearly  intitled  to  the  interest  and  profits  till  that  con- 
tingency happened.  And  decreed  according  to  the  prayer  of  the  bill, 
with  liberty  to  apply  in  the  case  of  the  birth  of  any  other  child.^ 


PRESTON  ON  CONVEYANCING,  vol.  3,  p.  555 :  "But  under 
the  learning  of  uses  and  of  executory  devises,  a  gift  to  a  class^of  per- 
sons"lTTay  give^aTtitTeTlirst^to  onelperson,  and  afterwards  open  and  ad- 
mit of  a  participation  by  others.  But  at_the  rnmmnn  law,  and  under 
the  learningof^  remainders,  a  gift  to  a  class  of  persons  will  not  admit 
to  a  participation  anv  whoare_born  after  the  determination  "oFthej^ar- 
ticular  estate,  though  such  after-born_persons  mightjtake_utider  a  gift 
operating  W  executory  devise,  oFsprmging  or  shifting  use.  (Mogg  v. 
MoigrTrrt:kar[my,-i^rDrT^T57Tl^T^ir^ 

"By  this  distinction  different  parts  of  the  certificate  in  Mogg  v. 
Mogg  are  reconciled;  the  same  words  of  description  having,  under 
different  circumstances,  conferred  a  title  on  a  different  number  of  the 
grandchildren  of  the  testator."  * 


MELLICHAMP  v.  MELLICHAMP. 

(Supreme  Court  of  South  Carolina,  1S88.    28  S.  C.  125,  5  S.  E.  333.)  » 

McIvLR,  J.  This  action  was  instituted  for  the  purpose  of  obtaining 
partition  of  a  certain  tract  of  land  described  in  the  complaint,  contain- 
ing 3,771  acres,  and  the  several  questions  raised  by  the  appellants 
grow  out  of  the  following  facts:  On  the  15th  of  January,  1878,  one 
John  Mpblev  cmiyeved  the  tract  of  land  described  in  the  complaint  _to^ 
the^  defendant  "Alarion  P  Mnble^y  nnd  flip  rhiHren  she  already  has 
and  may  hereafter  bear  bv  her  husband,"  Edward  P._  ]\Iobley7Sr. 
At  the  tirne~ol:  the  execution  "of  this  deed,  Mrs.  Mobley  had  borne  to 

3Accortl :     Where  personal  property  was  inyolyed:     Weld  y.  Bradbury,  2 

*  See,  also,  Brackenbury  y.  Gibbons,  2  Ch.  Div.  417 ;  Archer  y.  Jacobs,  125 
Iowa,  407,  482-484,  101  N.  W.  lO.j.  See,  also,  Matthews  v.  Temple.  Comber- 
liach's  Rep.,  467  (1G9S) ;  Fearne,  C.  R.  312,  314;  1  Jarman  on  Wills  (5th 
Amer.  Ed.)  star  pp.  2G4,  875;    Theobald  on  Wills  (7th  Ed.)  312. 

5  Only  part  of  the  opinion  of  the  court  is  given. 


100  CLASSIFICATION  OF  FUTURE   INTERESTS  (Part  1 

her  said  husband  the  following  children,  viz.,  Edward  P.,  Jr.,  Moses 
H.,  Kate,  (who  had  intermarried  with  the  plaintiff,)  Alarion,  Jones, 
Hattie,  and  Nancy, — seven  in  number, — all  of  whom  were  then  living. 
After  the  said  deed  was  executed,  anothej  child — the  defendant  Berry 
H.  iMobley — was  born  to  the  said  MariorT  R.  and  Edward  P.  Mobley, 
Sr.,  whose  right  to  participate  in  the  partition  is  disputed  by  some  of 
the  parties. 

[The  circuit  judge  held  that  Berry  H.  Mobley,  though  born  after 
the  execution  of  the  deed  from  John  IVIobley  to  Marion  R.  Mobley  and 
her  children,  was  entitled  to  share  in  the  partition.] 

As  to  the  question  [namely,  whether  the  after-born  child,  Berry  H. 
Mobley,  took  any  interest  under  the  deed  from  John  Alobley  to  Marion 
R.  Mobley  and  her  children]  there  can  be  no  doubt  that  the  intention 
was  to  include  after-born  children,  for  the  language  is :  "Unto  the 
said  Marion  R.  Mobley  and  the  children  she  already  has  and  may  here- 
after bear  by  her  husband,  the  said  Edward  P.  Mobley,  Sr.,"  and  it  is 
difficult  to  conceive  what  language  could_have^been_employed  more__£X- 
pressive  of  an  intention  to  include  after-born  children.  It  is  true  that 
this  question  arises  under  a  deed,  and  not  under  a  will,  where  it  is  sup- 
posed greater  weight  is  given  to  the  intention ;  but  as  we  understand 
it,  when  a  court  is  called  upon  to  construe  any  paper,  the  first  effort 
should  be  to  ascertain  the  intention  of  the  parties  from  the  language 
which  they  have  used.  It  is,  however,  likewise  true  that  sometimes 
the  intention  of  the  parties,  although  so  clearly  expressed  as  to  leave 
no  doubt  upon  the  subject,  cannot  be  carried  into  effect,  even  in  case 
of  a  will,  because  such  intention  contravenes  some  settled  rule  of  law, 
and  it  is  argued  here  that  although  the  intention  is  plain  to  iiTclude 
after-^rn  children,  the  deed  cannot  be  given  such  effect,  Because  iFvio- 
lates  the  well-established  rule  of  law  that  "a  freehold  estate~c^annot  be 
limited  to  commence  in  futuro,"  and  therefore,  as  Berry  H.  ]\Iobley 
was  iioTin  existence  when  this  deed  was  executed,  and  when  the  estate 
granted  passed  out  of  the  grantor,  it  could  never  afterwards  have  the 
effect  of  vesting  any  estate  in  him.  The  cases  cited  to  support  this 
view  are :  Stroman  v.  Rottenburg,  4  Desaus.  268 ;  Myers  v.  Myers, 
2  McCord,  Eq.  214,  16  Am.  Dec.  648;  McMeekin  v.  Brummet,  2'Hill 
Eq.  638;  Holeman  v.  Fort,  3  Strob.  Eq.  66,  51  Am.  Dec.  665;  and 
Kitchens  v.  Craig,  1  Bailey,  119.  Now,  while  in  all  of  these  cases  the 
after-born  children  were  excluded,  it  was  because  the  court  held  that 
the  terms  of  the  instrument — deed  or  will — did  not  show  an  intention 
to  include  the  after-born  children,  and  not  because  such  children  could 
not  take  under  the  rules  of  law.  On  the  contrary,  it  is  plainly  implied 
in  all  of  these  cases,  that  if  the  language  used  had  shown  an  intention  to 
include  after-born  children,  such  would  have  been  the  effect. 

The  case  of  Hall  v.  Thomas,  3  Strob.  101,  is  also  cited  in  support  of 
the  view  contended  for  by  appellant.  That  was  a  case  in  which  a 
mother,  by  a  very  informal  deed  of  gift,  transferred  personal  property 
to  her  two  children,  "Martha  and  Avan;  and  also,  if  I  should  have  any 


Ch.  5)  LIMITATIONS   TO    CLASSES  101 

more  children,  they  shall  all  my  children  be  equal  and  share  equal  in 
this  my  property,  given  and  intended  to  be  granted  and  given  and  con- 
firmed, and  by  these  presents  do  give,  grant,  and  confirm  unto  my  said 
children,"  etc.,  "of  all  which  premises  I,  the  said  Magdalen  Ulmer,  have 
put  the  said,  my  children,  in  full  and  peaceable  possession  by  virtue 
hereof ;"  and  it  was  held  that  this  paper,  by  its  terms,  vested  the  whole 
legal  estate  in  tlie  children  born  at  the  date  of  the  deed,  to  the  exclusion 
of  those  born  afterwards,  stress  being  laid  upon  the  words  last  quoted, 
as  one  not  in  esse  could  not  be  put  in  possession.  It  is  true  that 
O'Neall,  J.,  in  delivering  the  opinion  of  the  court,  also  lays  down  the 
doctrine  that  "a  deed  is  inter  vivos,  and  is  to  take  effect  in  prresenti. 
Such  a  thing  as  a  deed  to  a  person  unknown  or  not  in  esse  cannot  be ; 
*  *  *  such  a  thing  as  a  direct  and  immediate  gift  of  personalty  to 
person  not  in  esse  has  not  as  yet  been  allowed,  and  I  trust  never  will 
be."  But  he  adds,  further  on  in  the  same  opinion :  "If  this  had  been 
a  conveyance  of  land,  the  most  that  could  have  been  made  of  it,  be- 
tween the  parties,  would  have  been  that,  at  law,  the  legal  estate  was  in 
the  grantees  Martha  and  Avan,  and  in  equity,  that  they  might  have 
been  regarded  as  trustees  of  a  springing  or  shifting  use,  first,  for  them- 
selves ;  second,  for  themselves  and  the  after-born  children,  as  they  re- 
spectively come  into  being."  If  this  be  so,  then,  upon  the  same  princi- 
ple, the  after-born  child.  Berry  -H.  Mobley,  could  be  let  in. 

In  considering  the  question  arising  under  a  devise  to  children,  as  to 
the  point  of  time  at  which  the  class  is  to  be  ascertained,  or  rather  as  to 
the  period  within  which  the  objects  must  be  born,  we  find  in  2  Jarm. 
Wills,  marg.  p.  98,  the  following  language :  "We  are  now  to  consider 
how  the  construction  is  affected  by  the  words  'to  be  born,'  or  'to  be 
begotten,'  annexed  to  a  devise  'or  bequest  to  children ;  with  respect  to 
which  the  established  rule  is  that,  if  the  gift  be  immediate,  so  that  it 
would,  but  for  the  words  in  question,  have  been  confined 'to  children 
(if  any)  existing  at  the  testator's  death,  they  will  have  the  effect  of  ex- 
tending it  to  all  the  children  who  shall  ever  come  into  existence ;  since 
in  order  to  give  to  the  words  in  question  some  operation,  the  gift  is 
necessarily  made  to  comprehend  the  w-hole."  ^  Now,  while  this  lan- 
guage is  applied  to  a  will,  Ave  do  not  see  why  it  should  not  also  be  ap- 
plied to  a  deed  for  the  purpose  of  effecting  the  manifest  intention  of  the 
parties,  and  giving  to  the  words  used  some  operation  and  effect.  In- 
deed, we  find  that  the  principles  upon  which  the  above-stated  rule 
seems  to  rest  have  been  applied  to  a  deed  in  the  case  of  Hewet  v.  Ire- 
land, 1  P.  Wms.  426,  though  the  precise  question  here  under  consider- 
ation did  not  arise  in  that  case.  Nearly  40  years  ago  it  was  said  by  one 
of  the  chancellors  of  this  state  that  "the  difference  between  the  rules 
of  construing  deeds  and  wills  has  often  been  a  subject  of  regret;  and 
it  is  evident  that  the  current  of  decisions  is  gradually  wearing  it  away ; 

6 Accord:  Mogg  v.  Mogg.  1  Mer.  654;  Gooch  v.  Goocb,  1-i  Beav.  5()r>;  Ed- 
dowes  V.  Eddowes,  30  Beav,  603;  Cook  v.  Cook.  2  Vern.  545;  Theobald  on 
Wills  (7tli  Ed.)  311 ;   Leake  on  Property  in  Laud  (2d  Ed.)  267. 


102  CLASSIFICATION  OF  FUTURE  INTERESTS  (Part  1 

SO  that,  at  no  very  distant  day,  it  is  probable  they  will  become  almost 
identical."  If,  therefore,  any  mode  can  be  devised  by  which  the  mani- 
fest intention  of  the  parties,  as  expressly  declared  in  this  deed,  can  be 
carried  into  effect  without  violating  an  ancient  rule  of  the  common  law, 
deriving  its  origin  from  the  feudal  system,  as  Judge  O'Neall  seems  to 
think  there  can  be,  we  think  it  should  be  adopted.  It  will  be  observed 
that  the  deed  here  in  question  is  not  solely  tojpersons  not  iii  esse  at  the 
tiiiieof  its  execution,  but  there  Were  persons  in  existence  then  compe- 
tent  to  take  the  estate  conveyed ;  and  we  do  not  see  why  the  estate  thus 
vested  in  them  may~not,  in  order  to  effect  the  intention,  open  and  let  in 
all  of  the  class  expressly  mentioned  in  the  deed  as  they  severally  came 
into  existence.  It  seems  to  us,  therefore,  that  there  was  no  error  on 
the  part  of  the  circuit  judge  in  holding  that  Berry  H.  Mobley  was  enti- 
tled to  share  in  the  partition  of  the  land  described  in  the  complaint.'^ 
[Balance  of  opinion,  relating  to  another  point,  omitted.] 

7  Accord:   Pierce  v.  Brooks,  52  Ga.  425. 

Contra:   Miller  v.  McAlister,  197  111.  72,  64  N.  E.  254  (1902). 


Ch.  6)  FREEHOLD   INTERESTS   SUBJECT   TO   A   TERM  103 

CHAPTER  VI 
FREEHOLD  INTERESTS  SUBJECT  TO  A  TERM 


POLLOCK  ON  THE  LAND  LAWS,  pp.  137,  138:  Leaving  ex- 
ceptional cases  aside,  we  pass  on  to  consider  the  position  of  the  tenant 
who  holds  either  for  a  term  of  years,  or  as  tenant  from  year  to  year. 
In  the  feudal  plan  of  society  there  is  no  place  for  him ;  and  accordingly 
the  legal  doctrine  starts  from  the  conception  that  the  relation  between 
the  landlord  and  the  tenant  is  simply  a  personal  contract.  This  concep- 
tion is  at  the  bottom  of  all  the  differences  between  freehold  and  lease- 
hold tenure,  and,  though  largely  qualified  in  its  eft'ects,  must  be  borne 
in  mind  in  order  to  understand  even  the  most  modern  form  of  the  law. 
The  lessee's  interest  is  now  beyond  question  property,  not  the  mere 
right  to  the  performance  of  a  contract.  Still,  being  in  legal  theory  the 
creature  of  contract,  it  has  neither  the  dignities  nor  the  burdens  pe- 
culiar to  freehold  tenures.  It  is  not  the  subject  of  feudal  modes  of 
conveyance,  nor  of  the  feudal  rules  of  inheritance.  No  particular  form 
of  words  is^necessary  for  its  creation ;  and  the  custom  of  creating  it  by 
deed  has  become  a  legal  requirement  (and  that  not  in  every  case)  only 
by  modern  statutes.  It  could  always  be  disposed  of  by  will  if  the  ten- 
ant died  before  the  expiration  of  the  term ;  and  in  case  of  such  death 
the  law  deals  with  it  in  the  same  way  as  cattle  or  money,  and  it  goes  to 
the  executor,  as  part  of  the  "personal  estate,"  to  be  administered  by  the 
same  rules  as  movable  property.  If  undisposed  of  by  will,  the  lease- 
hold tenant's  interest  belongs  on  his  death  to  the  same  persons,  and  in 
the  same  proportions,  as  cash  or  railway  shares  which  he  has  not  dis- 
posed of.  There  is  no  such  thing  as  an  heir  of  leaseholds.  In  one 
word,  which  for  the  lawyer  includes  all  that  has  been  said,  a  leasehold 
is  not  real  but  personal  estate.  From  a  strictly  feudal  point  of  view 
there  is  not  an  estate  at  all,  only  a  personal  claim  against  the  freeholder 
to  be  allowed  to  occupy  the  land  in  accordance  with  the  agreement. 
But  as  early  as  the  thirteenth  century  two  points  were  settled,  which 
together  constituted  a  true  right  of  property  in  the  tenant.  If  he  was 
ejected  in  breach  of  his  landlord's  agreement,  he  could  recover  not 
merely  compensation  for  being  turned  out,  but  the  possession  itself; 
and  this  not  only  against  the  original  landlord,  but  against  a  purchaser 
from  him.  Already  the  purchaser  could  not  say  to  the  tenant  whom  he 
found  on  the  land,  "I  have  made  no  contract  with  you,  look  for  your 
redress  to  the  man  with  whom  you  did  contract."  The  farmer's  pos- 
session was  as  secure  while  his  estate  lasted  as  the  freeholder's.  On 
the  foundation  thus  laid  the  modern  law  has  been  completed,  partly  by 
judicial  usage  and  partly  by  express  legislation.  Broadly  speaking, 
both  the  landlord's  and  the  tenant's  successors  in  title  enjoy,  while  the 


104  CLASSIFICATION  OF  FUTURE   INTERESTS  (Part  1 

term  of  the  tenancy  lasts,  the  rights  conferred  at  its  creation  upon  the 
landlord  and  tenant  respectively,  and  are  subject  to  the  burdens  im- 
posed on  them.  Exceptions  may  still  occur,  too  rare  and  technical  to 
be  now  further  specified,  which  are  just  enough  to  show  that  the  old 
notion  of  a  mere  personal  agreement,  though  decayed,  is  not  dead. 


CHALLIS'  REAL  PROPERTY  (3d  Ed.)  99 :  The  sejsin  [of  the  im- 
mediate freehold  estate]  is  quite  independent^',  and  unaffected^ by,  the 
existence^f_any  term  or  terms~oT~yeafs^  Therefore,  so  far  as  the  seisin 
is  concerned,  there  can  existno  such  thing  as  a  remainder  of  freehold 
expectant  upon  a  term  of  years.  The  existence  of  a  prior  term  of 
years  does  not  prevent  the  first  vested  estate  of  freehold  from  being 
an  estate  of  freehold  in  possession.  (Litt.  §  60:  "If  the  termour  in 
this  case  entreth  before  any  livery  of  seisin  made  to  him,  then  is  the 
freehold  and  also  the  reversion  in  the  lessor.")  Words  and  phrases 
which  grammatically  import  futurity,  such  as  "then,"  "when,"  "from 
and  after,"  and  the  like,  when  they  refer  to  the  determination  of  a 
prior  term  of  years,  do  not  make  the  subsequently  limited  freehold 
contingent,  or  postpone  the  vesting  of  it  until  the  expiration  of  the 
term ;  but  under  such  circumstances  the  freehold  is  vested  immediately. 
(Boraston's  Case,  3  Rep.  19.)  During  the  continuance  of  a  prior  term, 
the  first  estate  of  freehold  is  properly  described,  not  as  being  a  remain- 
der of  freehold  expectant  upon  the  term  of  years,  but  as  being  the  free- 
hold in  possession  subject  to  the  term.  But  since  the  possession  of  the 
freeholder  is  in  such  a  case  subject  to  the  rights  of  the  termor,  and 
since  these  rights  may,  and  in  practice  usually  do,  deprive  the  free- 
holder of  the  immediate  use  and  occupation  of  the  lands  during  the 
term,  the  result  is,  for  many  practical  purposes,  much  the  same  as  if 
the  freehold  subsisted  only  as  a  veritable  remainder.  In  this  sense  the 
word  remainder  is  often  applied  to  estates  of  freehold  limited  after  a 
term  of  years.  But  when  this  language  is  used  the  reader  must  bear  in 
mind  (1)  that  a  prior  term  of  years  does,  not  prevent  a  subsequent  vest- 
ed estate  of  freehold  from  being  an  estate  oftreehold  in  posselsion; 
and  (2)  that  a  plMorn:enii6T3^ears~3oFs~n6f  prevent  asubsequent  con- 
tingenF"estate~or~ff^gho1d  from  being  void  in  its  inception,  as  beiiig  an 
attempt  to  create  a  freehold  uTtuturo. 


■EEAKE  ON  PROPERTY  IN  LAND  (2d  Ed.)  35  :  If  a  lease  were 
made  for  years  with  a  contingent  remainder  of  freehold,  the  limitation 
in  remainder  was"w]iony  voIHTBecalise  itleft  the  seMTfin  abeyance  un- 
t ijjhe  happening  of  the~contihgency ;  nor  could  livery^be_ay^"  f"'"  ?P^^^'^ 
an  estate  fjrwant  ora~present  ceftain"  grantee  of~thefreehold.  (Co. 
Lit.  217a.)    TEiis,  "it  is'a  general  rule,  tTiaF'wherever  an  estate  in  con- 


Ch.  6)  FREEHOLD   INTERESTS   SUBJECT   TO   A   TERM  105 

tingent  remainder  amounts  to  a  freehold,  some  vested  estate  of  free- 
hold must  precede  it."  (Fearne,  Cont.  Rem.  281.  See  Loyd  v.  Brook- 
ing, 1  Vent.  188.) 


LIT.  §  60.  But  if  a  man  letteth  lands  or  tenements  by  deed  or  with- 
out deed  for  term  of  years,  the  remainder  over  to  another  for  life,  or 
in  tail,  or  irTTee;  in  this  case  it_behooveth,  that  thej^sorjijakethjjyery 
of  seisin  to  the  lessee  for  years,  otherwise  nothing  passeth  to  them  in 
the  remainder,  although  that  the  lessee  enter  into  the  tenements.  And 
if  the  termor  in  this  case  entereth  before  any  livery  of  seisin  made  to 
him,  then  is  the  freehold  and  also  the  reversion  in  the  lessor.  But  if 
he  maketh  livery  of  seisin  to  the  lessee,  then  is  the  freehold  together 
with  the  fee  to  them  in  the  remainder,  according  to  the  form  of  the 
grant  and  the  will  of  the  lessor. 

Note  on  the  Distinction  between  Freehold  Interests  Subject  to  Terms 
AND  Those  Subject  to  a  Particular  Estate  of  Freehold  so  Far  as  the 
Existence  of  Seisin  is  Concerned. — Freehold  interests  limited  after  terms 
for  years,  if  valid  at  all,  are  present  interests  and  the  seisin  of  the  free- 
holder is  a  present  seisin.  Challis'  Real  Property  (.3d  Ed.)  70,  S9-90.  The 
freeholder's  wife  or  husband  has  dower  (Scribner  on  Dower  [2d  Ed.]  2.3.3)  or 
curtesy.  The  freeholder,  even  though  not  the  original  purchaser,  constitutes 
a  new  stock  of  descent.  Bushby  v.  Dixon  (1S24)  3  B.  &  C.  298  (4  Gray's  Cas. 
on  Prop.  10).  On  the  other  hand,  a  remainderman  has  no  seisin  at  all.  After 
mentioning  that  the  reversioner  has  a  sort  of  seisin  because  of  the  services 
rendered  him,  the  learned  authors  of  Pollock  and  Maitland's  History  say  (2 
Pollock  &  Maitland,  History  of  English  Law,  89):  "On  the  other  hand,  we 
cannot  find  that  any  sort  of  kind  of  seisin  was  as  yet  attributed  to  the  re- 
mainderman. He  \\as  not  seised  of  the  laud  in  demesne,  and  he  was  not, 
like  the  reversioner,  seised  of  it  in  service,  for  no  service  was  due  him." 
The  absence  of  seisin  in  the  remainderman  seems  always  to  have  continued, 
for  Hargrave  says  (the  italics  are  his):  "But,  in  opposition  to  what  may  be 
termed  the  expectant  nature  of  the  seisin  of  those  in  remainder  or  reversion 
the  tenant  in  possession  is  said  to  have  the  actual  seisin  of  the  lands."  Co. 
Lit.  (Ilargrave's  note)  217.  It  followed,  from  the  fact  that  the  remainder- 
man had  no  seisin  that  he  did  not  render  feudal  services.  2  Pollock  &  Mait- 
land, History  of  English  Law,  39.  He  could  not  bring  a  writ  of  right.  Lit. 
§  4S1.  In  order  to  transfer  a  remainder  the  co-operation  by  attornment  of  the 
tenant  was  necessary,  so  that  the  actual  seisin  of  the  freehold  in  possession 
might  be  held  for  the  grantee  of  the  reiuainderman.  Mystery  of  Seisin,  by 
F.  W.  Maitland,  2  L.  Q.  K.  481,  490-493.  A  remainderman,  other  than  one 
who  was  an  original  purchaser  did  not  constitute  a  new  stock  of  descent.  4 
Kent,  Com.  387.  In  this  respect  also  the  remainder  was  on  the  footing  of  a 
mere  right  of  entry  by  one  disseised.  The  Mystery  of  Seisin,  by  F.  W.  Mait- 
land, 2  L.  Q.  R.  481,  485.  The  consequences  arising  from  the  fact  that  the 
remainderman  had  no  seisin  have  come  down  to  us  in  the  rule  that  there 
can  be  no  dower  or  curtesy  in  a  remainder.  Co.  Lit.  29a,  .32a ;  Scribner  on 
Dower  (2d  Ed.)  233,  321.  In  this  respect  the  remainder  was  on  the  footing 
of  a  mere  right  of  entry  by  one  disseised.  Mystery  of  Seisin,  2  L.  Q.  R.  481, 
485,  et  seq.— Ed. 


106  CLASSIFICATION  OF  FUTURE   INTERESTS  (Part  1 

ADAMS  V.  SAVAGE. 
(Court  of  King's  Bench,  1703.    2  Ld.  Raym.  854.) 

A  scire  facias  Avas_sued_by  theplaintiff  as  administrator  to  J.  S.  upon 
adrninistration  grpnteH  tn~him  hythe  archdeacon^QJ^  Dorset,  upon  a 
jiiHgment  recovered  by  the  intestate  against  Savage  in  this  court.  And 
the  issue  alter  pTeading  was,  whetTier~Savage  was  seised  of  the  lands , 
etc.,  in  fee?  Upon  which  the  jury  found  a  special  verdict,  that  Savage 
being  seiTed  in  fee,  conveyed^he  lands  bylease  and  release  to  trustees 
and  their  heirs,  to  the  use  oFhimself  for  ninety-nin^years^_^  he  should 
so  Ions  live^remainder  to  the  trustees  tor  twenty^five  vears.  remainder 
to  tlie  heirs  male  of  his  body^emainder  to  his  own  right  heirs.  And 
the^question~wal7^7'Ba^^  during  his  life,  not  havmg  heirsjiiale^ o f 
his  body,  should  have  a  use  result  to  him_for  his  life.  and_so  become 
tenant  inTail  m  possession ;  or  if  no  use  could  result,  and  then  there  be- 
ing nofreeholdto^up2gitjhe_c^^  f 
the  body  of  Savage^the  said  remainder  would  be  void,  and  Savage 
seised  in  fee  as  before"  And~this  was  argued  by  Mr.  Eyre  for  the  pTaih- 
tiff,  and  by  Mr.  Serjeant  Darnell  for  the  defendant,  Hilary  term 
last,  and  this  term.  And  the  court  held,  that  no  use  could  result  to 
Savage  during  his  life,  and  ther'etore  tiiej-ernamder  to  theTieirs  male 
was  void,  and  Savage  seised  in  fee.  And  their  reasons  were,  because 
the  limitations  to  himself  for  ninety-nine  years,  and  to  the  trustees  for 
tw^enty^five  years,  and  the  heirs  male,  Avere  ne\v  uses  and  newestates. 
As  it  a  man Tdv' lease  and  release^  or  by  covenant  to  stand  seised,  limit 
the  use  to  himself  for  life,  or  in  tail,  these  are  new  estates,  and  not  par- 
cel of  the  old  estate,  according  to  7  Co.  13  b,  Englefield's  Case.  And 
where  in  such  case  upon  a  conveyance  such  uses  are  limited,  as  (sup- 
posing the  limitations  to  be  good)  would  pass  the  whole  estate,  there  no 
use  will  result  contrary  to  the  express  limitations  of  the  party.  But  if 
the  limitations  are  void,  the  conveyance  of  necessity  will  fail.  If  a 
man  seised  in  fee  convey  his  estate  by  lease  and  release  to  the  use  of 
himself  for  life,  remainder  to  trustees  for  their  lives,  remainder  to  the 
heirs  of  his  body;  he  hath  an  estate  tail  in  him,  but  he  is  but  tenant  for 
life  in  possession :  otherwise  if  there  had  been  no  intermediate  estate  in 
the  tinastees  for  their  lives.  And  in  the  former  case,  if  a  man  makes 
a  feoffment,  it  is  no  discontinuance,  but  only  divests  the  estate.  And 
for  the  same  reason  in  this  case,  where  the  first  limitation  is  only  for 
years,  the  remainder  to  the  heirs  of  the  body  of  the  tenant  for  years  is 
a  contingent  remainder,  and  void.  These  are  the  reasons  of  the  Chief 
Justice  Holt. 

And  Powell,  Justice,  said,  that  there  was  a  difference,  where  the 
limitation  was  upon  a  covenant  to  stand  seised,  and  where  upon  a  lease 
and  release.    For  where  the  limitations  are  to  take  effect  out  of  the  es- 


Ch.  6)  FREEHOLD   INTERESTS   SUBJECT   TO    A   TERM  107 

tate  of  the  covenantor,  there  if  the  hmitations  were  such  as  could  not 
take  effect  immediately,  or  not  till  after  the  death  of  the  covenantor,  as 
in  the  case  of  Pybus  v.  Midford,  2  Lev.  75,  there  the  law  may  mould 
the  estate  remaining  in  the  covenantor  into  an  estate  for  life;  but  that 
cannot  be  where  the  limitations  are  to  take  effect  out  of  the  estate  of 
the  trustees  for  want  of  a  limitation,  much  less  against  an  express  limi- 
tation. And  therefore  (by  him)  if  there  had  been  an  express  limitation 
in  the  case  of  Pybus  v.  Midford,  limited  to  the  covenantor,  the  judg- 
ment would  have  been  otherwise.  And  for  these  reasons  the  whole 
court  ordered  last  Hilary  term,  that  judgment  should  be  entered  for 
the  plaintiff,  unless  cause  should  be  shown  to  the  contrary  the  first  day 
of  this  term.  And  the  first  day  of  this  term  Darnell,  Queen's  Serjeant, 
showed  for  cause,  that  the  plaintiff  could  not  have  judgment,  because  it 
appeared  upon  the  scire  facias  that  he  was  not  intituled  to  it ;  because 
the  administration  was  granted  to  him  by  the  archdeacon  of  Dorset,  and 
therefore  the  grant  of  it  was  void ;  for  the  judgment  of  this  court,  upon 
which  the  scire  facias  is  founded,  is  bona  notabilia.  2.  If  it  will  not 
make  bona  notabilia,  yet  this  grant  of  administration  will  be  void  quoad 
this  judgment,  because  it  lies  out  of  the  hmits  of  the  jurisdiction  of  the 
archdeacon  of  Dorset.  Against  which  it  was  urged  by  Mr.  Eyre  for 
the  plaintiff  that  this  court  cannot  take  notice  of  the  boundaries  of 
dioceses ;  and  it  may  be,  that  this  court  is  within  the  archdeaconry  of 
Dorset,  for  that  archdeaconry  may  be  within  the  diocese  of  London; 
and  this  court  will  not  intend  the  contrary,  since  the  contrary  does  not 
appear  to  them.  But  per  Holt,  Chief  Justice,  this  court  will  take  no- 
tice of  the  limits  of  ecclesiastical  jurisdiction,  which  is  part  of  the  law 
of  the  realm,  under  which  we  live;  and  consequently  it  will  take  no- 
tice, that  a  judgment  of  the  King's  Bench  is  not  within  theJuriidi^tiDn 
of  the  archdeacon  ot  JJorseT  And  ior  tmb  iedsuintTewliole  court 
held,  that^idgment  ought  to  be  given  for  the  defendant.^ 


GORE  V.  GORE. 

(Court  of  Cliancery,  1722.    2  P.  Wms.  28.) 

This  case  came  on  before  Lord  Chancellor  Macclesfield,  who  di- 
rected it  to  be  referred  to  the  judges  of  the  King's  Bench  for  their 
opinion. 

The  testator  William  Gore  had  several  sons,  Thomas  and  Edward 
Gore,  ficc,  and  several  daughters;  and  being  seised  in  fee  of  divers 
manors  and  lands,  did,  by  his  will  dated  14th  July,  1718,  device  these 
lands,  &c.,  to  trustees  for  500  years,  and  after  the  determination  of 

1  Rawley  v.  Hollanclr  22  Yin.  Ab.  ISO,  pi.  11  (1712),  accord.  See  Gray,  Per- 
petuities, §§  58-60. 


108  CLASSIFICATION  OF  FUTURE   INTERESTS  (Part  1 

that  term,  to  the  first  son  of  his  eldest  son  Thomas  (who  was  tlien  a 
bachelor),  tcTlJe  begotten  m  tait~m^ale/"and  siD  to"  evSry~0TtTCt--3en  of 
tlie  l)ody  of  Thomas  to  be  begotten  in  tail  male  successively. 

Remainder  to  the  testator's  second  son  Edward  for  life,  remainder 
to  his  first,  &c.,  son  in  tail  male  successively,  with  divers  remainders 
over. 

The  trust  of  the  term  of  500  years  was,  to  pay  the  testator's  debts 
and  legacies,  which  were  considerable,  and  likewise  to  pay  i50  per 
annum  annuity  to  the  testator's  eldest  son  for  his  life,  with  a  power 
for  his  said  eldest  son  to  distrain  for  the  same,  if  in  arrear,  with  a 
power  to  the  testator's  younger  son  Edward  to  charge  the  premises 
with  il,000  apiece  for  his  younger  sons  or  daughters,  payable  at 
twenty-one,  and  with  a  maintenance  for  them  in  the  mean  time,  not 
exceeding  the  interest  of  their  portions;  the  trustees  to  raise  such 
portions,  and  maintenance  out  of  the  term  for  500  years,  and  when 
all  the  trusts  of  the  term  were  performed,  then  the  term  to  attend  the 
inheritance. 

Also  the  testator  declared,  that  the  reason  why  he  gave  his  eldest 
son  Thomas  no  more  than  i50  per  annum  was,  because  his  said  eldest 
son  had  stood  him  in  a  great  deal  of  money,  and  was  to  have  £400  per 
annum,  in  lands  in  Wiltshire,  immediately  after  his  [the  testator's] 
death. 

In  the  February  following,  the  testator  died,  leaving  his  eldest  son 
Thomas  then  a  bachelor,  who  afterwards  married,  and  had  a  son. 

The  first  question  was,  whether  the  devise  tomFfiTSt'sorTof  TTiornas 
(the  testator's  eldest  son)  was  good? 

2dly,  in  whom  the  freehold  of  the  premises  did  vest  at  the  death  of 
the  testator? 

Whereupon  all  the  four  judges  of  the  King's  Bench  thaj^tlien  were, 
(viz.)  Pratt,  C.  J.TT^owisTEyrE,  and  Fortescue  Aland,  Justices, 
certified  their  opinions  under  their  hands,  "that  the__deyise  to  the  eld- 
est^^onof  Thomas  Gore  was  void ;  that  it  could  not  be  good  as  a 
remairnletT^oFlvaht  of'a  freelTord~to"gnpporlit;  aiid"  that  it  could 
nor_take_effectas  an  executory  devise,  because  It  was  too  "reniote 
(vizj  after  5001^-ears.'"  tjut  l^ord  Aiacclesrield  expressed  some  dis- 
saHsf action  at  this  opinion  of  the  judges,  saying,  that  though  the  law 
might  be  so,  yet  the  term  of  500  years  being  but  a  trust  term,  and  to 
be  considered  in  equity  as  a  security  only  for  money,  was  not  to  be 
so  far  regarded  (at  least  in  equity)  as  to  make  the  devise  over  void. 

After  which  the  eldest  son  Thomas  Gore  and  his  brother  Edward 
came  to  an  agreement,  which  was  confirmed  by  the  court. 

Afterwards  Thomas  Gore  had  a  son  and  died,  and  the^son^ofJPhomas 
^ore  bringing  this  matjter  ove^again^in  Chancery,  Lord  "Chancellor 
King  sent  it^  second  timeltolheTou?t  of  KingTT^ench,  where  Lord 

HARDWICKg;2Cr^^GE,    PROBjn^,_^lT3|X^f77usT^^^ 

opinion  against  the  opmTon~ortheir  predecessors,  (viz.)  "Thatlhiswas 


0 


Ch.  6)  FREEHOLD   INTERESTS   SUBJECT   TO    A   TERM  109 

a  good  executory  devise,  and  not  too  remote;  for  that  it  must  in  all 
events,  one  way  or  other,  happen,  upon  the  death  of  Thomas  j}ore, 
whether  he  should  have  a  son  or  notTand  either  upon  the  birth  of  the 
son,  or  upon  his  death  without  issue  male,  the  freehold  must  vest." 

Lord  Raymond  also  was  of  this  last  opinion. 

The  two  certificates  were  in  the  words  following: 

"We  have  heard  counsel  on  both  sides  on  the  question  above  speci- 
fied, and  having  considered  the  same,  are  of  opinion,  that  the  devise 
of  the  manors  above  mentioned  to  the  first  son  of  Thomas  Gore  is 
voMTT^ecause  he  cannot  take  by  way  of  remainder,  for  that  thereTs 
no  freehold  to  supporflt ;  nor  can  he  take  by  way  of  executory  de^ 
viseTbecause  it  is  not  to  talce  place  within  thaFcompass  of  time  whith 
the  law  allows ;  and  we  are  also  of  opinion  that  theTreehold  of  the 
same  manors,  on  the  death  oFlhe"  devisor,  vested~in1B^ward  the'sec- 
ond  son.  ~~  " 

"John  Pratt,  Littleton  Powis,  R.  Eyre,  J.  Fortescue  Aland. 
" 1722." 


r  1-]  "Upon  hearing  counsel  on  both  sides,  and  consideration  of  this  case, 
we  are  of  opinion,  that  tlie  devise  of  the  manors  of  Barrow  and 
Sou thley  to  the  first  son  of  Thomas  Gore  is  good  by  way  of  execu - 
tory  devise,  andJ:hat  the  freehold  of  the  said,m.nnnr.s,  on.  the  dealli  of 
the  devisor,  vested  in  his  heir-atJaw. 

"PIardwicke,  F.  Page,  E.  Probyn,  W.  Lee. 
"Jan.  26,  1733." 


110  CLASSIFICATION   OF  FUTURE   INTERESTS  (Part  1 

CHAPTER  VII 
RULE  IN  SHELLEY'S  CASE 


PROVOST  OF  BEVERLEY'S  CASE.' 

(Y.  B   40  Edw.  Ill,  9.     [1366.]) 

Lands  were  given  to  one  John  de  Sutton  for  his  Hfe,  the  remainder, 
after  his  decease,  to  John  his  son,  and  Eh'ne,  the  wife  of  John  the  son, 
and  the  heirs  of  their  bodies ;  and  in  default  of  such  issue,  to  the  right 
heirs  of  John  the  father.  John  the  father  died  first;  then,  John  and 
EHne  entered  into  possession.  John  the  son  then  died,  and  afterwards 
EHne  his  wife,  without  leaving  any  heir  of  her  body.  R.,  another  son, 
and  heir  at  law  of  John  de  Sutton,  the  father,  then  entered.  And  it 
was  decided  by  all  the  Justices  that  he  was  liable  to  pay  a  relief  to  the 
chief  lord  of  the  fee,  on  account  of  the  descent  of  the  lands  to  himself 
from  John  the  father.  Thorpe,  who  seems  to  have  been  a  judge,  thus 
explained  the  reason  of  the  decision :  ''You  are  in  as  heir  to  your  fa- 
ther, and  your  brother  [father?]  had  the  freehold  before;  at  which 
time,  if  John  his  son  and  EHne  had  died  [without  issue]  in  his  lifetime, 
he  would  have  been  tenant  in  fee  simple."  ^ 


WILLIAMS  ON  REAL  PROPERTY  (21st  Ed.)  346-348:  We 
have  seen  that,  according  to  feudal  law,  the  grantee  of  an  hereditary 
fief  was  considered  as  being  entitled  during  personal  enjoyment  only, 
that  is,  for  his  life ;  while  his  heir  was  regarded  as  having  been  endow- 
ed with  a  substantial  interest  in  the  land.  And  these  conceptions  seem 
to  have  been  imported  into  English  law  along  with  the  principle  of  ten- 
ure. In  early  times  after  the  Conquest  therefore,  if  a  grant  of  land 
were  made  to  a  man  and  his  heirs,  his  heir,  on  his  death,  became  enti- 
tled ;  and  it  was  not  in  the  power  of  the  ancestor  to  prevent  the  descent 
of  his  estate  accordingly.  He  could  not  sell  it  without  the  consent  of 
his  lord ;  much  less  could  he  then  devise  it  by  his  will.  The  ownership 
of  an  estate  in  fee  simple  was  then  but  little  more  advantageous  than 
the  possession  of  a  life  interest  at  the  present  day.  The  powers  of 
alienation  belonging  to  such  ownership,  together  with  the  liabilities  to 
which  it  is  subject,  have  almost  all  been  of  slow  and  gradual  growth,  as 
has  already  been  pointed  out  in  different  parts  of  the  preceding  chap- 
ters.   A  tenant  in  fee  simple  was,  accordingly,  a  person  who  held  to 

1  As  stated  in  Williams  on  Real  Property  (21st  Ed.)  pp.  350,  351. 

2  The  same  rule  is  said  to  have  been  mentioned  in  Abel'si  Case,  18  Edw.  II, 
577  (1324),  which  will  be  found  translated  in  7  M.  &  G.  941,  note  (e). 


Ch.  7)  RULE  IN  Shelley's  case  111 

him  and  his  heirs ;  that  is,  the  land  was  given  to  him  to  hold  for  his 
Hfe,  and  to  his  heirs,  to  hold  after  his  decease.  It  cannot,  therefore, 
be  wondered  at,  that  a  gift,  expressly  in  tliese  terms,  "To  A.  for  his 
Hfe,  and  after  his  decease  to  his  heirs,"  should  have  been  anciently  re- 
garded as  identical  with  a  gift  to  A.  and  his  heirs,  that  is,  a  gift  in  fee 
simple.  Nor,  if  such  was  the  law  formerly,  can  it  be  matter  of  surprise 
that  the  same  rule  should  have  continued  to  prevail  up  to  the  present 
time.  Such  indeed  has  been  the  case.  Notwithstanding  the  vast  power 
of  alienation  now  possessed  by  a  tenant  in  fee  simple,  and  the  great  lia- 
bility of  such  an  estate  to  involuntary  alienation  for  the  purpose  of  sat- 
isfying the  debts  of  the  present  tenant,  the  same  rule  still  holds ;  and  a 
grant  to  A.  for  his  life,  and  after  his  decease  to  his  heirs,  will  now  con- 
vey to  him  an  estate  in  fee  simple,  with  all  its  incidents ;  and  in  the 
same  manner  a  grant  to  A.  for  his  life,  and  after  his  decease  to  the 
heirs  of  his  body,  will  now  convey  to  him  an  estate  tail  as  effectually 
as  a  grant  to  him  and  the  heirs  of  his  body.  In  these  cases,  therefore, 
as  well  as  in  ordinary  limitations  to  A.  and  his  heirs,  or  to  A.  and  the 
heirs  of  his  body,  the  words  "heirs"  and  "heirs  of  his  body"  are  said  to 
be  words  of  limitation ;  that  is,  words  which  limit  or  mark  out  the  estate 
to  be  taken  by  the  grantee.  At  the  present  day,  when  the  heir  is  per- 
haps tlie  last  person  likely  to  get  the  estate,  those  words  of  limitation 
are  regarded  simply  as  formal  means  of  conferring  powers  and  privi- 
leges on  the  grantee — as  mere  technicalities  and  nothing  more.  But,  in 
ancient  times,  these  same  words  of  limitation  really  meant  what  they 
said,  and  gave  the  estate  to  the  heirs,  or  the  heirs  of  the  body  of  the 
grantee,  after  his  decease,  according  to  the  letter  of  the  gift.  The  cir- 
cumstance, that  a  man's  estate  was  to  go  to  his  heir,  was  the  very  thing 
which,  afterwards,  enabled  him  to  convey  to  another  an  estate  in  fee 
simple.  And  the  circumstance,  that  it  was  to  go  to  the  heir  of  his  body, 
was  that  which  alone  enabled  him,  in  after  times,  to  bar  an  estate  tail 
and  dispose  of  the  lands  entailed  by  means  of  a  common  recovery. 


GOODEVE.  LAW  OF  REAL  PROPERTY  (4th  Ed.,  by  Ephin- 
stone,  Clark  &  Dickson)  239,  240 :  We  do  not  know  by  what  reasoning 
the  rule  [in  Shelley's  Case]  was  originally  established;  but  the  follow- 
ing considerations  will  show  that  it  woukl  be  impossible  for  any  person 
who  understood  the  meaning  of  the  words  employed  to  deny  the  exist- 
ence of  the  rule.  Ever  since  tlie  Conquest,  English  lawyers  were  ac- 
quainted with  the  difference  between  a  conveyance  "to  A."  and  a  con- 
veyance of  land  "to  A.  and  his  heirs."  In  the  first  case,  A.'s  interest  de- 
termined on  his  death ;  in  the  second  case,  it  passed  on  his  death  to  his 
heirs.  Then  the  case  arose  of  a  conveyance  "to  A.,  with  remainder  to 
his  heirs."  Now  what  is  the  meaning  of  "the  heirs  of  A."  ?  (Evans  v. 
Evans  (1892)  2  Ch.  173.)  It  means  an  indefinite  succession  of  persons, 
each  of  whom  will  succeed  to  the  land  of  which  A.  dies  seised  (or  ac- 


112  CLASSIFICATION  OF  FUTURE   INTERESTS  (Part  1 

cording  to  the  present  law  of  which  A.  was  the  purchaser,  and  dies 
seised),  unless  some  prior  heir  alienates  it,  or  according  to  the  old  law, 
becomes  attainted.  It  is  sometimes  forgotten  that  although  before  the 
Inheritance  Act,  1833  (3  &  4  Will.  IV,  c.  106,  9  L.  Q.  R.  2),  heirship 
was  traced  from  the  person  last  seised,  yet  every  blood  relation  of  the 
purchaser  was  necessarily  one  of  his  heirs,  except  where  he  was  ex- 
cluded by  the  rule  as  to  the  half-blood.  It  follows  therefore  that,  un- 
less both  the  purchaser  and  his  father  and  mother  were  bastards,  the 
number  of  persons  each  of  whom  might  be  his  heir  was  infinite ;  and 
as  there  can  be  only  one  heir  at  the  same  time,  each  of  these  persons 
became  the  heir  in  succession  one  after  the  other.  There  was  no  man- 
ner known  to  the  common  law  in  which  these  persons  could  take  by 
purchase.  The  only  estates  which  could  be  held  by  more  than  one  per- 
son as  purchaser  were  estates  in  joint  tenancy  and  tenancy  in  common. 
The  estate  of  the  heirs  could  not  be  in  joint  tenancy,  for  the  estates  of 
joint  tenants  must,  according  to  the  common  law,  arise  at  the  same 
time  and  not  in  succession ;  it  could  not  be  tenancy  in  common,  because, 
although  the  estates  of  tenants  in  common  may  arise  at  different  times, 
still  persons  cannot  be  tenants  in  common  unless  they  are  tenants  at  tlie 
same  time,  Avhich  is  impossible  in  the  case  of  heirs.  If,  therefore,  it  is 
not  possible  for  the  heirs  to  take  by  purchase,  the  only  possible  manner 
in  which  they  can  take  is  by  descent;  in  other  words,  A.  the  ancestor 
must  take  the  fee  simple. 


CHALLIS'  REAL  PROPERTY  (3d  Ed.)  p.  152 :  In  the  limitations 
now  under  consideration,  there  occurs  always  an  estate  of  freehold 
limited  to  a  specified  person,  and  a  subsequent  limitation,  whether  im- 
mediate or  remote,  expressed  to  be  made  to  the  heirs,  or  to  some  class 
of  the  heirs,  of  the  same  person.  The  prior  estate  and  the  subsequent 
limitation  must  both  arise  under  or  by  virtue  of  the  same  instrument. 
Grammatically,  the  construction  of  the  second  limitation  might  be,  to 
give  a  remainder  by  purchase  to  the  specified  heirs.  And  since  the 
person  whose  heirs  they  are,  or  rather,  are  to  be,  is  living  at  the  date  of 
the  limitation,  such  a  remainder,  if  taken  by  the  heirs  as  purchasers, 
would  be  a  contingent  remainder  of  Fearne's  fourth  class,  being  a  limi- 
tation in  remainder  to  a  person  not  yet  ascertained  or  not  yet  in  being. 
(Vide  supra,  p.  131.)  But  the  law  puts  upon  the  limitation  to  the  heirs 
a  different  construction,  not  giving  to  them  any  estate  at  all  by  pur- 
chase, but  taking  account  of  the  mention  of  the  heirs  only  for  the  pur- 
pose of  giving  a  corresponding  estate  to  the  specified  ancestor.  There- 
fore, it  is  commonly  said,  that  in  limitations  coming  within  the  rule  in 
Shelley's  Case,  the  word  "heu's"  is  not  a  word  of  purchase  but  a  word 
of  limitation. 

ID.,  p.  166:  The  question  as  to  the  origin,  or  true  grounds,  of  the 
rule  in  Shelley's  Case,  has  given  rise  to  much  speculation,  into  which  it 
is  not  desirable  to  enter  at  length.    Considering  that,  at  the  time  when 


Ch.  7)  RULE  IN  Shelley's  case  113 

the  rule  arose,  tenure  was  the  mainstay  of  our  pohtical  constitution, 
and  that  the  preservation  of  the  fruits  of  tenure  was  notoriously  a  prin- 
cipal aim  of  the  law,  and  that  settlements  giving  an  estate  for  life  to  the 
ancestor  with  a  remamder  to  his  heir,  if  they  had  been  permitted  to 
take  effect  by  way  of  remainder,  would  have  enabled  a  family  to  enjoy 
all  the  advantages  of  a  descent,  while  evading  the  feudal  burdens  by 
which  a  descent  was  accompanied :  the  opinion  seems  to  be  more  than 
plausible,  that  the  true  origin  of  the  rule  is  to  be  found  in  the  policy  of 
feudalism.3    (See  1  Prest.  Est.  295-309.) 


1  HAYES  ON  CONVEYANCING  (5th  Ed.)  542-546:  The  rule 
assumes  and  founds  itself  upon  two  pre-existing  circumstances, — a 
freehold  in  the  ancestor,*  and  a  remainder  to  the  heirs.  The  absence 
of  either  of  these  ingredients  repels  the  application  of  the  rule;  their 
concurrence  irresistibly  invites  it.  When  the  rule  supposes  the  second 
limitation  to  be  a  remainder,  it  plainly  excludes, — 1,  the  case  of  limita- 
tions differing  in  quality,  the  one  being  legal  and  the  other  equitable ;  ^ 
2,  the  case  of  limitations  arising  under  distinct  assurances ; "  and,  3,  the 
case  of  an  executory  limitation,  by  way  of  devise  or  use ;  ^  and,  conse- 

3  This  is  at  all  events  the  policy  of  the  Statute  of  Marlebridge,  52  Hen. 
Ill,  c.  6,  enacting  that  the  lord  should  not  lose  his  wardship  by  a  feoffment 
made  in  the  tenant's  lifetime  to  the  tenant's  heir,  being  within  age;  and 
the  language  of  the  statute  shows  that  this  and  other  like  devices  for  evading 
feudal  burdens  were  then  well  known.  This  enactment  was  not  merely  level- 
ed at  covinous  feoffments,  where  the  feoffor  continued  afterwards  in  receipt 
of  the  profits,  but  extended  to  bona  fide  feoffments  to  the  heir's  use.  (Bacon, 
Uses,  p.  2.5,  ad  init.)  [See  Van  Grutten  v.  Foxwell,  (1S97)  A.  C.  609,  where  the 
origin  of  the  rule  was  discussed.  The  true  view  seems  to  be  that  the  rule 
was  an  inevitable  result  of  the  doctrines  of  the  ancient  common  law.  At  the 
time  when  the  rule  was  established,  contingent  remainders  were  not  rec- 
ognized as  lawful  limitations  ;  conset]uently  it  was  impossible  to  give  effect  to 
a  limitation  to  the  heirs  of  a  person,  unless  they  took  by  descent  fwilliams,  R. 
P.  [3d  Ed.]  218,  note) ;  and  even  if  such  a  limitation  had  been  legal  it  would 
have  been  Impossible  to  give  literal  effect  to  it,  because  this  would  have  in- 
volved giving  the  heirs  estates  in  succession  by  purchase  (see  Goodeve,  R.  P. 
[5th  Ed.]  p.  224).  The  only  way  of  carrying  out  the  intention  of  the  settlor 
was  to  give  the  ancestor  an  estate  of  inheritance.  So  far,  therefore,  from 
having  been  invented  in  order  to  defeat  the  intention  of  settlors,  the  object  of 
tlie  rule  was  benignant,  namely  to  give  effect  to  the  Intention  as  far  as  pos- 
sible.] 

4  Although  it  be  determinable,  e.  g.  by  marriage.  Curtis  v.  Price,  12  Ves. 
89  {ISOo).— Ed. 

5  Harvey  v.  Ballard,  252  111.  57,  9G  N.  E.  558,  accord.  But  where  both  es- 
tates are  equitable  the  rule  applies.  Wright  v.  Pearson,  1  Edw.  139;  Jones 
V.  Morgan,  1  Bro.  C.  C.  20G,  ovenniling  Bagshaw  v.  Si)encer,  1  Ves.  142. — Ed. 

G  Moore  v.  Parker,  4  Mod.  316. — Ed. 

7  Papillon  V.  Voice,  2  P.  Wms.  471  (1728) ;  Leonard  v.  Sussex,  2  Vern.  520 
(1705);  1  Prest.  Estates,  355.    See  8  111.  Law  Rep.  153. 

Where  there  is  a  direction  to  trustees  to  convey  to  A.  for  life,  with  a  re- 
mainder to  the  heirs  of  A.,  or  a  remainder  to  the  heirs  of  A.'s  body,  it  Is 
regularly  held  that  thei'e  is  an  executory  trust,  and  that  a  settlement  will 

4  Kales  Peop. — 8 


114  CLASSIFICATION  OF  FUTURE   INTERESTS  (Part  1 

quently,  upon  principle,  the  case  of  a  limitation  arising  under  an  ap- 
pointment of  the  use ;  but  authority  seems  to  have  established  an  anom- 
alous exception  in  regard  to  appointments.  Again,  as  the  second  limi- 
tation must  be  a  remainder  to  the  heirs,  it  follows,  that,  with  limitations 
to  sons,  children,  or  other  objects,  to  take,  either  as  individuals  or  as  a 
class,  under  what  is  termed  a  descriptio  personae,  as  distinguished  from 
a  limitation  embracing  the  line  of  inheritable  succession,  the  rule  has 
no  concern  whatever.  In  order  to  find  whether  the  second  limitation 
is  a  remainder  to  the  heirs  or  not,  we  must  resort  to  the  general  rules 
and  principles  of  law.  The  rule  being  a  maxim  of  legal  policy,  conver- 
sant with  things  and  not  with  words,  applies  whenever  judicial  exposi- 
tion determines  that  heirs  are  described,  though  informally,  under  a 
term  correctly  descriptive  of  other  objects,  but  stands  excluded  when- 
ever it  determines  that  other  objects  are  described,  though  informally, 
under  the  term  "heirs."  Thus,  even  the  word  "children,"  aided  by  the 
context,  or  the  word  "issue,"  uncontrolled  by  the  context,  may  have  all 
the  force  of  the  word  "heirs,"  and  then  the  rule  applies ;  while  the  word 
"heirs,"  restrained  by  the  context,  may  have  only  the  force  of  the  word 
"children,"  and  then  the  rule  is  utterly  irrelevant.  These  are  prelimi- 
nary questions,  purely  of  construction,  to  be  considered  without  any 
reference  to  the  rule,  and  to  be  solved  by, '  exclusively,  the  ordinary 
process  of  interpretation.  This  point,  kept  steadily  in  view,  would  have 
prevented  infinite  confusion. 

The  operation  of  the  rule  is  twofold :  First,  it  denies  to  the  remain- 
der the  efifect  of  a  gift  to  the  heirs ;  secondly,  it  attributes  to  the  re- 
mainder the  effect  of  a  gift  to  the  ancestor  himself.  It  is,  therefore, 
clear  that  the  rule  not  only  defeats  the  intention,  but  substitutes  a  legal 
intendment  directly  opposed  to  the  obvious  design  of  the  limitation.  A 
rule  which  so  operates  cannot  be  a  rule  of  construction.  As  a  conse- 
quence of  transferring  the  benefit  of  the  remainder  from  the  heirs,  who 
are  unascertained,  to  the  ancestor,  who  is  ascertained,  the  inheritance, 
limited  in  contingency  to  tlae  heirs,  may  become  vested  in  the  ancestor ; 
and,  as  another  consequence  of  the  same  process,  the  ancestor's  estate 
of  freehold  may  merge  in  the  inheritance.  Thus — 1.  If  land  be  limited 
to  A.  for  life,  remainder  to  his  heirs  or  to  the  heirs  of  his  body,  the  pri- 
mary effect  will  be  to  give  him  an  estate  of  freehold  (liable,  of  course, 
to  merger),  with,  by  force  of  the  rule,  a  remainder  immediate  and  vest- 
ed, to  himself  in  fee  or  in  tail  (just  as  if  the  limitations  were  to  him  for 
life,  remainder  to  him  and  his  heirs,  or  to  him  and  the  heirs  of  his 
body) ;  and  the  final  result,  under  the  law  of  merger,  will  be,  by  the 
absorption  of  the  particular  freehold  in  the  vested  inheritance,  to  give 
him  an  estate  in  fee  tail  or  an  estate  in  fee  simple  in  possession.  But 
— 2.  If  land  be  limited  to  A.  for  life,  remainder,  if  A.  shall  survive  B., 
to  his  (A.'s)  heirs  or  to  the  heirs  of  his  body,  then,  as  the  remainder  is 
contingent,  because  made  to  depend  on  A.'s  surviving  B.,  tlie  ancestor 
(A.)  will  take,  under  the  rule,  not  a  vested,  but  a  contingent  inherit- 
ance ;  (just  as  if  the  limitations  were  to  him  for  life,  remainder,  if  &c., 


Ch.  7)  RULE  IN  Shelley's  case  115 

to  him  and  his  heirs,  or  to  him  and  the  heirs  of  his  body) ;  the  rule 
changing  the  object,  but  not  the  quahty  of  tlie  remainder.  Here,  as 
the  inheritance  cannot  vest,  the  particular  estate  of  freehold  will  not 
merge,  but  A.  will  remain  tenant  for  life,  with  an  immediate  contingent 
remainder  to  himself  in  tail  or  in  fee.  This  remainder,  in  the  event  of 
his  surviving  B.,  will  vest  in  him  (A.) ;  the  estate  of  freehold  will  then 
merge,  and  he  will  thus  have,  as  in  the  previous  example,  a  fee  tail  or 
fee  simple  in  possession.  So — 3.  If  land  be  limited  to  A.  for  life,  re- 
mainder to  B.  for  life  or  in  tail,  remainder  to  the  heir  or  heirs  of  the 
body  of  A.,  then,  by  reason  of  the  interposition  of  the  estate  for  life 
or  estate  tail  of  B.,  the  ancestor  (A.)  has,  under  the  rule,  not  an  im- 
mediate but  only  a  mediate  inheritance  (just  as  if  the  limitations  were 
to  him  for  life,  remainder  to  B.  for  life  or  in  tail,  remainder  to  him  (A.) 
and  his  heirs,  or  to  him  and  the  heirs  of  his  body},  the  rule  changing 
the  object,  but  not  the  position,  of  the  remainder.  A.,  therefore,  will 
be  tenant  for  life,  with  a  mesne  vested  remainder  to  himself  in  tail  or 
in  fee,  in  which  remainder,  if  B.'s  interposed  estate  should  determine 
'in  A.'s  lifetime,  A.'s  life  estate  will  merge,  and  he  will  then  have,  as  in 
the  first  example,  a  fee  tail  or  fee  simple  in  possession.^ 

The  obvious  deduction  from  these  examples  is,  that  in  no  case  does 
the  rule  disturb  the  particular  estate  of  freehold  in  the  ancestor,  which 
estate  is  left  to  the  uncontrolled  operation  of  ordinary  principles,  merg- 
ing, or  not  merging,  according  as  the  remainder,  transferred  by  the 
rule  from  the  heirs  to  tlie  ancestor,  is  absolute  or  conditional,  proxi- 
mate or  remote.  The  estate  of  freehold  is  a  circumstance  without 
which  tlie  rule  is  dormant ;  but  the  rule,  when  called  into  action,  ex- 
erts its  force  on  the  remainder  alone.  Why  that  circumstance  was 
selected,  we  can  only  conjecture.  It  is  affirmed,  indeed,  that  a  limita- 
tion to  A.  for  life,  with  remainder  to  his  heirs,  is  in  truth  the  same 
thing  as  a  limitation  to  A.  and  his  heirs.  In  the  simple  case  thus  put, 
the  effect,  under  the  rule,  aided  by  the  doctrine  of  merger,  is  the  same, 
but  surely  the  import  is  not  the  same.  And  how  unsatisfactory  does 
this  reasoning  appear,  when  it  is  recollected  that  the  rule  equally  applies 

be  directed  which  will  prevent  the  application  of  the  rule  in  Shelley's  Case. 
Theobald  ou  Wills  (Tth  Ed.)  725,  726:  Tapillon  v.  Voice,  2  P.  Wms.  471; 
Parker  v.  Bolton,  5  L.  J.  Ch.  98;  Duncan  v.  Bluett,  Jr.  Rep.  4  Eq.  469; 
Hawden  v.  llawden,  23  Beav.  551 ;  Stoner  v.  Curwen,  5  Sim.  2f>4 ;  Bastard  v. 
Proby,  2  Cox,  6;  Rochfort  v.  Fitz  Maurice,  2  D.  &  War.  1;  Tallmau  v.  Wood, 
26  Wend.  (N.  Y.)  9;  Wood  v.  Burnham,  6  I'aige  (N.  Y.)  513;  Hanna  v.  Hawcs. 
45  Iowa,  437 ;  Saunders  v.  Edwards,  55  X.  C.  134 ;  Berry  v.  Williamson,  11  B. 
Mou.  (Ky.)  245,  258,  261.    But  see  Wicker  v.  Ray,  US  111.  472,  8  N.  E.  835.— id. 

8  Douglas  V.  Congreve,  1  Beav.  59 ;  Measure  v.  Gee,  5  Barn.  «&  Aid.  910 ; 
Dennett  v.  Dennett,  43  N.  H.  499;  Carpenter  v.  Hubbard,  263  lU.  571,  580, 
105  N.  E.  688,  accord. 

In  the  same  way,  where  the  life  estate  is  subject  to  a  valid  spendthrift 
trust  clause,  the  rule  still  operates  upon  the  remainder ;  the  spendthrift  trust 
being  effective  to  prevent  any  merger.  Wehrhane  v.  Safe  Deposit  Co.,  89  Md. 
179,  42  Atl.  930;  Carpenter  v.  Hubbard,  263  111.  571,  580,  105  N.  E.  688.  But 
see  Bucklin  v.  Creighton.  18  R.  I.  325,  27  Atl.  221,  and  Nightingale  v.  Phil- 
lir.s   29  R.  T.  175.  72  Atl.  220.  226. 


116  CLASSIFICATION   OF  FUTURE   INTERESTS  (Part  1 

where  the  gift  is  to  A.  for  hfe,  remainder  (interposed)  to  B.  for  hfe, 
remainder  to  the  heirs  of  A ;  or  to  A.  pur  auter  vie,  remainder  to  the 
heirs  of  A. ;  or,  to  A.  durante  viduitate,  remainder  to  the  heirs  of  A. ; 
or  to  A.  in  tail,  remainder  to  the  heirs  of  A.  &c.,— cases  which  need 
only  be  mentioned  in  order  to  destroy  the  theory  that  would  form  a 
fee  by  the  union  of  the  two  limitations.  It  is  an  error,  and  tlie  fruit- 
ful parent  of  errors,  to  affirm  that  the  limitations  unite  or  coalesce  un- 
der the  rule,  Avhich  has  discharged  its  office  by  simply  substituting  the 
ancestor  for  the  heirs  in  the  second  limitation. 

\\'hen  the  ordinary  rules  of  construction  have  ascertained  the  co- 
existence of  a  freehold  in  the  ancestor  with  a  remainder  to  the  heirs, 
the  simplest  and  surest  method  of  applying  the  rule  is  to  read  the  sec- 
ond limitation  as  a  limitation  to  the  ancestor  himself  and  his  heirs. 
This  gives  at  once,  and  in  every  possible  case,  the  true  result.  The  ef- 
fect, universally  and  constantly,  will  be  the  same  as  if  the  remainder 
had  been  expressly  and  intentionally  limited  to  the  ancestor  and  his 
heirs : — reading  the  words  "and  his  heirs,"  not  (according  to  the  no- 
tion referred  to  at  the  close  of  the  preceding  paragraph),  as  words  of 
limitation  of  the  estate  of  freehold  before  expressly  limited  to  him,  but 
as  words  of  limitation  of  the  estate  in  remainder  attributed  to  him  by 
the  rule. 


ARCHER'S  CASE. 

(Court  of  Queen's  Bench,  1599.     1  Coke,  6Gb.)  » 
See  ante,  p.  43,  for  a  report  of  the  case. 

sAccord  (on  the  point  that  the  rule  in  Shelley's  Case  did  not  apply):  Wil- 
lis V.  Hiscox,  4  Myl.  &  Cr.  197 ;  Clerk  v.  Day,  Moore.  593 ;  Greaves  v.  Simp- 
son, 12  W.  R.  773,'  10  Jur.  609 ;  Bayley  v.  Morris,  4  Ves.  Jr.  788 ;  Canedy  v. 
Haskins,  54  Mass.  (13  Mete.)  389,  46  Am.  Dec.  739;  Hamilton  v.  Weutworth, 
58  Me.  101. 

But  where  the  remainder  created  by  will  was  to  "the  next  lawful  heir"  of 
the  life  tenant  "all  the  freehold  estate  forever,"  the  rule  in  Shelley's  Case 
applied.    Fuller  v.  Chamier,  L.  R.  2  Eq.  682  (1866). 

A  fortiori,  where  the  remainder  is  to  the  heir  (in  the  singular)  of  the  life 
tenant  and  there  are  no  superadded  words  of  limitation  or  other\Aise.  the  rule 
in  Shellev's  Case  applies.  Richards  v.  Bergavenny,  2  Vern.  324;  Theobald 
on  Wills,' 7th  Ed.,  422. 

But  where  the  remainder  is  limited  to  the  life  tenant's  heir  (in  the  singu- 
lar) "for  life."  the  rule  in  Shelley's  Case  does  not  apply.  White  v.  Collins, 
Com.  2S9 ;    Redder  v.  Hunt,  18  Q.  B.  D.  565. 

The  principal  case  is  followed  so  far  as  it  holds  that  the  rule  in  Shelley's 
Case  applies  where  there  are  life  estates  to  several  with  a  remainder  to  the 
lieirs  of  one  onlv.  Hess  v.  Lakin,  7  Ohio  Dec.  300 ;  Kepler  v.  Reeves,  7  Ohio 
Dec.  (Reprint)  34;  Bullard  v.  Ooffe.  20  Rick.  (Mass.)  252;  Bails  v.  Davis,  241 
111.  5'56,  89  N.  E.  706,  29  L.  R.  A.  (N.  S.)  9.37 ;  Fearne,  C.  R.  36,  63,  310.  But 
see  Shaw  v.  Robinson,  42  S.  C.  342,  347,  20  S.  E.  161. 

Note. — "When  an  estate  is  limited  to  a  husband  and  wife,  and  the  heirs 
of  their  two  bodies,  the  word  'heirs'  is  a  word  of  limitation,  because  an  estate 
is  given  to  both  the  persons,  from  whose  bodies  the  heirs  are  to  issue.  But 
when  it  is  given  to  one  only  and  the  heirs  of  two  (as  to  the  wife  and  the 
heirs  of  her  and  A.  B.),  there  the  word  'heirs'  is  a  word  of  purchase.     For 


Ch.  7)  RULE   IN   SHELLEi's   CASH  117 

PERRIN  V.  BLAKE. 

(Court  of  King's  Bench,  17G9.     1  W.  Bl.  672.) 

Action  of  trespass :    special  verdict. 

William  Williams,  by  his  last  will,  after  giving  portions  to  his  three 
daughters,  disposes  of  his  "temporal  estate  in  manner  tollowing:  It 
is  my  intent  and  meaning,  that  none  of  my  children  should  seU_or  cUs- 
pose  of  my  estate  for  longer  term  than  his  Ufej  and,  to  that  intent,  I 
give,  devise,  and  bequeath,  all  the  rest  and  residue  of  my  estate  to  my 
son  John  Williams,  and  any  son  my  wife  may  be  ensient  of  at  my 
death,  for  and'  during  the  term  of  their  natural  ]ives_;  the  remainder  to 
my  brother-in-law  Isaac  Gale  and  his  heirs,  for  and  during  the  natural 
lives  of  my  said  sons,  John  Williams  and  the  said  infant;  the  re- 
mainder_to^the  heirs  ofjthe  bodies  of  my  said  sons.  John  Williams  and 
the  said  infant  lawfully  begotten  or  to  be  begotten ;  the  remainder  to 
my  daughters  for  and  during  the  term  of  their  natural  lives,  equally 
to  be  divided  between  them ;  the  remainder  to  my  said  brother-in-law 
Isaac  Gale  during  die  natural  lives  of  my  said  daughters  respectively; 
the  remainder  to  the  heirs  of  the  bodies  of  my  said  daughters  equally 
to  be  divided  between  them.  And  1  do  declare  it  to  be  my  will  and 
pleasure,  that  the  share  or  part  of  any  of  my  said  daughters,  that  shall 
happen  to  die,  shall  immediately  vest  in  the  heirs  of  her  body  in  manner 
aforesaid."  William  Williams  died  4th  February,  1723,  leaving  issue 
one  son,  named  John  Williams,  and  three  daughters,  Bonneta,  Hannah, 
and  Anne,  and  his  wife  not  ensient.  John  Williams  suffered  a  recovery, 
and  declared  the  uses  to  himself  and  his  heirs. 

no  estate  tail  can  be  made  to  one  only,  and  the  heirs  of  the  body  of  that  per- 
son and  another.  This  appears  from  Lit.  §  352,  according  to  the  true  reading 
collected  from  the  original  editions.  The  common  editions  make  the  estate 
Cypres,  therein  mentioned,  to  be  to  the  widow  and.  'les  heirs  de  corps  sa 
baron  de  luy  engendres,'  which  is  not  as  near  as  might  be  to  the  original  es- 
tate intended  if  the  husband  had  lived,  viz.  to  the  husband  and  wife  and  the 
heirs  of  their  two  bodies.  But  the  original  edition  by  Lettou  and  Macklinia 
in  Littleton's  life-time,  and  the  Roan  edition,  which  is  the  next  (both  which 
my  Brother  Blackstone  has),  read  it  thus,  'les  heirs  de  les  corps  de  son  baron 
et  luy  engendres ;'  which  is  quite  consonant  to  the  original  estate.  And  this 
estate  to  the  widow  for  life,  and  the  heirs  of  the  body  of  her  husband  and 
herself  begotten,  Littleton,  in  the  same  section,  declares  not  to  be  an  estate 
tail.  The  same  is  held  in  Dyer,  99, — in  Lane  and  Pannel,  1  Roll.  Rep.  438. 
and  in  Gossage  and  Taylor,  Styles.  32.5 ;  which,  from  a  manuscript  of  Lord 
Halo  in  possession  of  my  Brother  Bathurst,  appears  to  have  been  first  deter- 
mined in  Ilil.  1651 ;  which  accounts  for  some  expressions  of  Chief  Justice 
Rolle  in  Style's  Case,  which  was  in  T.  Pasch.  1652.  There  it  was  expressly 
held,  that  this  was  a  contingent  remainder  to  the  heirs  of  both  their  bodies. 
The  only  difference  of  these  three  cases  from  the  present  is,  that  there  the 
wife  had  an  express  estate  for  life,  and  here  not.  But  upon  legal  principles 
the  cases  are  just  alike.  An  estate  'to  A.  and  the  heirs  of  his  Iwdy,'  is  the 
same  as  an  estate  'to  A.  for  life,  remainder  to  the  heirs  of  his  body.'  We  are 
therefore  all  of  opinion  that  this  was  a  contingent  remainder  to  the  issue,  and 
not  being  capable  of  taking  effect  at  the  determination  of  the  particular  es- 
tate, is  therefore  gone  forever."  Per  Wilmot,  C.  J.,  in  Frogmorton  v.  Whar- 
rey,  2  W.  Bl.  728,  731  (1770).  See  Fearne.  C.  R.  38 ;  2  Jarm.  Wills  (4th  Ed.) 
340-343. 


118  CLASSIFICATION   OF  FUTURE   INTERESTS  (Part  1 

N.  B.  This  was  a  case  from  Jamacia,  and  in  fact,  instead  of  a  re- 
covery, the  supposed  estate  tail  of  John  Williams  was  endeavored  to 
be  barred,  by  a  lease  and  release  enrolled,  according  to  the  local  law  of 
that  country.  It  came  on  before  a  committee  of  the  Privy  Council, 
who  directed  a  case  to  be  stated  for  the  opinion  of  the  Court  of  King's 
Bench,  who  refused  to  receive  it  in  that  shape.  And  therefore,  a  feign- 
ed action  was  brought  and  the  case  above  stated  was  by  consent  re- 
served at  the  trial. 

It  was  argued  in  this  [Easter]  and  Trinity  Terms ;  the  question  be- 
ing merely  this.  Whether  John  Williams  took  by  this  will  an  estate  for 
life  or  in  tail.  And  in  ]\Iichaelmas  Term  following  it  was  adjudged  by 
Lord  Mansfield,  C.  J.,  Aston  and  WillES,  JJ.,  that  he  took  only 
an  estate  for  life;  Yates,  J.,  contra,  that  he  took  an  estate  tail.  But 
I  was  not  present  when  the  judgment  of  the  court  was  delivered.^'* 


JESSON  V.  WRIGHT. 

(House  of  Lords,  1S20.     2  Bligh,  1.) 

Ejectment  ^^  in  the  King's  Bench  for  land  in  Stafit'ord.  At  the  trial 
in  March,  1815,  before  Dallas,  J.  the  jury  found  a  special  verdict  in 
substance  as  follows:  In  1773  Ezekiel  Persehouse  died  and  devised  to 
"William,  one  of  the  sons  of  my  sister  Ann  WVight,  before  marriage, 
all  that  messuage,"  &c.,  being  the  land  in  question,  "to  hold  the  same 
premises  unto  the  said  Wjlliam,  son  of  my  said  sister  Ann  Wright, 
for  and  during  the  term  of  his  natural  life,  he  keeping  all  the  said 
dwelling-houses  and  buildings  in  tenantable  repair;  and  from  and 
after  his  decease  I  give  and  devise  all  the  said  dwelling-houses,"  &c., 
' 'unto  the  heirs  of  the  bodv  of  the  said  William,  son  of  my  said  sis- 
ter'XmTWright^  lawfully  issuing^  in  such  shares  and  j)roportions  as 
he  the  said  William  shall''  byHeed  or  will  "give,  direct,  limTt'br  ap- 
poiTITTand  for^want  of  such  gift,  direction,  limitation  or  appointment, 

^r "^ ■ - —       ■  _^ 

10  This  case  did  not  come  before  tlie  court  on  a  special  verdict,  but  upon  a 
demurrer  to  the  replication  in  a  feigned  action  of  trespass.  See  1  Doug.  343 
note.    The  opinions  of  the  judges  are  given  in  1  Harg.  Coll.  Jur.  283,  20(3. 

A  writ  of  error  was  brought  upon  this  judgment  in  the  Exchequer  Chamber, 
and  was  there  argued  several  times,  for  the  last  time  in  May,  1771.  On  Jan- 
uary 29,  1772,  the  judges  delivered  their  opinions.  Parker,  C.  B.,  Adams,  B., 
Gould,  J.,  Perrott,  B.,  Blackstone  and  Nares,  .7J.,  were  for  reversal.  De  Grey, 
C.  J.,  and  Smyth,  B.,  were  for  afhrmance.  Mr.  Justice  Blackstone's  opinion 
will  be  found  in  Harg.  Law  Tracts,  4S7. 

A  writ  of  error  was  brought  to  carry  the  case  to  the  House  of  Ix)rds,  where 
it  was  kept  pending  for  several  years,  but  in  1777  it  was  compromised,  with- 
out a  hearing. 

For  the  controversy  to  which  this  case  gave  rise,  see  Fearne,  C.  R.  155- 
173;  Fearne's  Letter  to  Lord  Mansfield  appended  to  the  First  Volume  of  the 
Fourth  Edition  of  the  Treatise  on  Contingent  Kemainders;  3  Campbell,  Chief 
Justices  (3d  Ed.)  305-312. 

11  The  statement  of  the  case  Is  abbrevinted  from  thnt  in  the  report. 


Cli.  7)  RULE  IN  Shelley's  case  119 

then  to  the  heirs  of  the  body  of  the  said  William,  son  of  my  said  sis-_ 
ter,  Ann  W  nght7ta%vfTrtly  issumg,  share  and~slTare  alike,  as  tenants  in 
conYmon,  and'if  hlit'  one  child,  the  "whole  to  such  only  child,  and  for 
want  ot  "such  issue,"  then  over. 

William  Wright  married  Mary  Jones,  by  whom  he  had  issue,  his 
eldest  son  Edward,  and  several  other  children.  In  1800  he,  his  wife 
and  his  son  Edward,  suffered  a  recovery.  The  lessors  of  the  plaintiff 
were  the  heirs  of  Ezekiel  Persehouse,  and  the  younger  children  of 
William  Wright. 

The  Court  of  King's  Bench  gave  judgment  for  the  plaintiff,  and 
the  defendants  brought  a  writ  of  error  in  the  House  of  Lords.  The 
principal  error  assigned  was,  that  the  court  below,  by  their  judgment, 
had  decided  that  "William  Wright  took  only  a  life-estate  under  the 
wiil  of7&:c.,  with  remainder  to  His  childrenfor  life ;  andl:hat~the  re- 
covery suffered  by  WilliamTWngEt,  Slary  his  wife,  and  Edward 
\\  right,  was  a  forteiture^  of  their  estate.  Whereas  the  plaintiffs  in 
error  contended,  that  the  testator  Intended  to  embrace  all  the  issue  of 
William  Wright,  which  intention  could  only  be  effected  by  giving  W^il- 
liam  Wright  an  estate  tail,  for  which  purpose  tlie  words  of  the  will 
are  fully  sufficient." 

ThjB  Law  Chancellor  [Lord  Eldon].  The  question  to  be  de- 
cided in  this  case  is  expressed  in  the  words  to  be  found  in  the  errors  as- 
signed, the  principal  of  which  is,  that  the  court,  by  their  judgment, 
have  decided  "that  the  said  William  W^right  took  only  a  life  estate  un- 
der the  said  will  of  the  said  E.  Persehouse,  with  remainder  to  his  chil- 
dren for  life;  and  that  the  recover}^  suffered  by  the  said  William 
Wright,  and  Mary  his  wife,  and  Edward  Wright,  was  a  forfeiture  of 
their  estate.  Whereas,  the  said  R.  Jesson,  J.  Hately,  W.  Whitehouse, 
J.  Watton,  E.  Dangerfield  the  elder,  and  T.  Dangei-field,  allege  for 
error,  that  the  testator  intended  to  embrace  all  the  issue  of  the  said 
William  Wright,  which  intention  can  only  be  eft'ected  by  giving  to  the 
said  \\'illiam  WVight  an  estate  tail,  and  the  words  of  the  will  are  fully 
sufficient  for  that  purpose."  I  will  not  trouble  the  House  by  going 
through  all  the  cases  in  which  the  rule  has  been  established ;  that  where  t> 
there  is  a  particular  nnd  a  general  inteptj  the  particular  is  to  be  sacri- 
ficed to  the  general  intent.  The  opinion  which  I  have  formed  concurs 
with  most,  though  not  with  every  one,  of  those  cases.  A  great  many 
certainly,  and  almost  all  of  them  coincide  and  concur  in  the  establish- 
ment of  that  rule.  Whether  it  was  wise  originally  to  adopt  such  a 
rule  might  be  a  matter  of  discussion ;  but  it  has  been  acted  upon  so 
long  that  it  would  be  to  remove  the  landmarks  of  the  law,  if  we  should 
dispute  the  propriety  of  applying  it  to  all  cases  to  which  it  is  applica- 
ble. There  is,  indeed,  no  reason  why  judges  should  have  been  anxious 
to  set  up  a  general  intent  to  cut  down  the  particular,  when  the  end 
of  such  decision  is  to  give  power  to  the  person  having  the  first  estate, 
according  to  the  general  and  paramount  intent  to  destroy  the  interest 
both  under  the  general  and  the  particular  intent.     However,  it  is  de- 


120  CLASSIFICATION   OF   FUTURE   INTERESTS  (Part   1 

finitively  settled  as  a  rule  of  law  that  where  there  is  a  particular,  and 
a  general  or  paramount  intent,  the  latter  shall  prevail,  and  courts  are 
bound  to  give  effect  to  the  paramount  intent. 

This  is  a  short  will.  The  decision  in  the  court  below  has  proceeded 
upon  the  notion,  that  no  such  paramount  intent  is  to  be  found  in  this 
will.  Here,  I  must  remark,  how  important  it  is,  that,  in  preparing 
cases  to  be  laid  before  the  House,  great  care  should  be  taken  not  to 
insert  in  them  more  than  the  words  of  the  record.  In  page  3  of  the 
printed  case  delivered  on  behalf  of  the  plaintiffs  in  error,  are  to  be 
found  the  words  "appointee  in  tail  general  of  the  lands,  &c.,  therein- 
after granted  and  released  of  the  second  part."  These  words  are  not 
to  be  found  in  the  record.  I  mention  the  fact,  because,  if  this  is  to  be 
quoted  as  an  authority  in  similar  cases,  it  may  mislead  those  who  read 
and  have  to  decide  upon  it,  if  not  noticed.  According  to  the  words 
of  the  will,  it  is  absurd  to  suppose  that  the  testator  could  have  such 
intention  as  the  rules  of  law  compel  us  to  ascribe  to  his  will.  "I  give 
and  devise  unto  William,  one  of  the  sons  of  my  sister  Ann  Wright 
before  marriage,  all  that  messuage,  &c.,  to  hold  the  said  premises  unto 
the  said  W^illiam,  son  of  my  said  sister  Ann  Wright,  for  and  during 
the  term  of  his  natural  life,  he  keeping  all  the  said  dwelling-houses 
and  buildings  in  tenantable  repair."  If  we  stop  here  it  is  clear  that 
the  testator  intended  to  give  to  William  an  interest  for  life  only.  The 
next  words  are,  "and  from  and  after  his  decease,  I  give  and  devise  all 
the  said  dwelling-houses,  &c.,  unto  the  heirs  of  the  body  of  the  said 
\\'illiam,  son  of  my  said  sister  Ann  Wright,  lawfully  issuing."  If  we 
stop  there,  notwithstanding  he  had  before  given  an  estate  expressly 
to  William  for  his  natural  life  only,  it  is  clear  that,  by  the  effect  of 
these  following  words,  he  would  be  tenant  in  tail ;  and,  in  order  to 
cut  down  this  estate  tail,  it  is  absolutely  necessary  that  a  particular  in- 
tent should  be  found  to  control  and  alter  it  as  clear  as  the  general 
intent  here  expressed.  The  words  "heirs  of  the  body"  will  indeed 
yield,  to  a  clear  particular  intent,  that  the  estate  should  be  only  for 
life,  and  that  may  be  from  the  effect  of  superadded  words,  or  any  ex- 
pressions showing  the  particular  intent  of  the  testator ;  but  that  must 
be  clearly  intelligible,  and  unequivocal.  The  will  then  proceeds,  ^lio. 
such  shares  and  proportions  as  he,  the  said  William,  shall  by  deed, 
&c.,  appoTnfT'  This  part  of  the  will  makes  it  necessary  again  to  ad- 
vert to  the  extraneous  words  inserted  in  the  case  of  the  plaintiffs  in 
error,  and  to  caution  those  who  prepare  them.  "Heirs  of  the  body" 
mean  one  person  at  any  given  time ;  but  they  comprehend  all  the  pos- 
terity of  the  donee  in  succession :  William,  therefore,  could  not  strict- 
ly and  technically  appoint  to  heirs  of  the  body.  This  is  the  power, 
and  then  come  the  words  of  limitation  over  in  default  of  execution  of 
the  power;  "and  for  want  of  such  gift,  direction,  limitation,  or  ap- 
pointment,  then  to~ihe  heirs  of  tlieljody  of  the  said  WHliam,  son  of"niy 
said  sister  Ann  Wright,  lawfully  issumg,  share_and  share  alike  as 
tenants  in'common."  '■  " 


Ch.  7)  RULE  IN  shellf.y's  case  121 

It  has  been  powerfully  argued  (and  no  case  was  ever  better  argued 
at  this  bar)  that  the  appointment  could  not  be  to  all  the  heirs  of  the 
bod>"  in  succession  forever,  and,  therefore,  that  it  must  mean  a  per- 
son, or  class  of  persons,  to  take  by  purchase ;  that  the  descendants  in 
all  time  to  come  could  not  be  tenants  in  common ;  that  "heirs  of  the 
body,"  in  this  part  of  the  will,  must  mean  the  same  class  of  persons 
as  the  "heirs  of  the  body,"  among  whom  he  had  before  given  the 
power  to  appoint ;  and,  inasmuch  as  you  here  find  a  child  described 
as  an  heir  of  the  body,  you  are  therefore  to  conclude,  that  heirs  of 
the  body  mean  nothing  but  children.  Against  such  a  construction 
many  difficulties  have  been  raised  on  the  other  side,  as,  for  instance, 
how  the  children  should  take,  in  certain  events,  as  where  some  of  the 
children  should  be  born  and  die  before  others  come  into  being.  How 
is  this  limitation,  in  default  of  appointment  in  such  case,  to  be  con- 
strued and  applied?  The  defendants  in  error  contend,  upon  the  con- 
struction of  the  words  in  the  power,  and  the  limitation  in  default  of 
appointment,  that  the  words  "heirs  of  the  body"  mean  some  particu- 
lar class  of  persons  within  the  general  description  of  heirs  of  the 
body;  and  it  was  further  strongly  insisted  that  it  must  be  children, 
because,  in  the  concluding  clause,  of  the  limitation  in  default  of  ap- 
pointment, the  whole  estate  is  given  to  one  child,  if  there  should  be 
only  one.  Their  construction  is,  that  the  testator  gives  the  estate  to 
^^'ill^am  foj  life,  and  to  the  children  as  tenants  injconimon  for  life._ 
How  they  ^ould  so  take,  in  many  of  the  cases  put  on  the  other  side, 
it  is  difficult  to  settle.  Children  are  included  undoubtedly  in  heirs  of 
the  body;  and  if  there  had  been  but  one  child,  he  would  have  been 
heir  of  the  body  and  his  issue  would  have  been  heirs  of  the  body ;  but, 
because  children  ar»  included  in  the  words  heirs  of  the  body,  it  does 
not  follow  that  heirs  of  the  body  must  mean  only  children,  where  you 
can  find  upon  the  will  a  more  general  intent  comprehending  more  ob- 
jects. Then  the  words,  "for  want  of  such  issue,"  which  follow,  it  is 
said,  mean  for  want  of  children ;  because  the  word  such  is  referential, 
and  the  word  child  occurs  in  the  limitation  immediately  preceding. 
On  the  other  hand,  it  is  argued,  that  heirs  of  the  body  being  the  gen- 
eral description  of  those  who  are  to  take,  and  the  words  "share  and 
share  alike  as  tenants  in  common,"  being  words  upon  which  it  is  dif- 
ficult to  put  any  reai,onable  construction,  children  would  be  merely  ob- 
jects included  in  the  description,  and  so  would  an  only  child.  The 
limitation  "if  but  o.ie  child,  then  to  such  only  child,"  being,  as  they 
say,  the  description  of  an  individual  who  would  be  comprehended  in 
the  terms  heirs  of  the  body;  for  "want  of  such  issue."  they  conclude, 
must  mean  for  want  of  heirs  of  the  body.  H  the  words  children  and 
child  are  so  to  be  considered  as  merely  within  the  meaning  of  the 
words  heirs  of  the  body,  which  words  comprehend  them  and  other 
objects  of  the  testator's  bounty,  (and  I  do  not  see  what  right  I  have 
to  restrict  the  meaning  of  the  word  "issue''),  there  is  an  end  of  the 
question.     I  do  not  go  through  the  cases.     That  of  Doe  v.  Goff  [11 


122  CLASSIFICATIOX   OF  FUTURE   INTERESTS  (Part   1 

East,  668]  is  difficult  to  reconcile  with  this  case — I  do  not  say  im- 
possible ;  but  that  case  is  as  difficult  to  be  reconciled  with  other  cases. 
Upon  the  whole,  I  think  it  is  clear  that  the  testator  intended  that  all 
th'"e  issue  ofAAHTTam  sTioufd  faij  before  tFe  "estate sFould  go  over  ac- 
cordingjto  the  final  limitation.  I__am_sorry  that  such  a  decisron  is 
necessary :  because^when  we  thus  enforce  a  paraniouht  mtentTon^  we 
enable  th^_£i:^  taker  to  destroy  both^the  general  and  particular  intent. 
But  it  is  more  important  to  maintain  the  rules  of  law  than  to  provide" 
against  the  hardships  of  particular  cases. 

Lord  RedesdalE.  There  is  such  a  variety  of  combination  ni 
words,  that  it  has  the  effect  of  puzzling  those  who  are  to  decide  upon 
the  construction  of  wills.  It  is  therefore  necessary  to  establish  rules, 
and  important  to  uphold  them,  that  those  who  have  to  advise  may  be 
able  to  give  opinio.is  on  titles  with  safety.  From  the  variety  and 
nicety  of  distinction  in  the  cases,  it  is  difficult,  for  a  professional  ad- 
viser, to  say  what  is  the  estate  of  a  person  claiming  under  a  will.  It 
cannot  at  this  day  be  argued,  that,  because  the  testator  uses  in  one 
part  of  his  will  words  having  a  clear  meaning  in  law,  and  in  another 
part  other  words  inconsistent  with  the  former,  that  the  first  words  are 
to  be  cancelled  or  overthrown.  In  Colson  v.  Colson  [2  Atk.  246]  it  is 
clear  that  the  testator  did  not  mean  to  give  an  estate  tail  to  the  parent. 
If  he  meant  anything  by  the  interposition  of  trustees  to  support  con- 
tingent remainders,  it  was  clearly  his  intent  to  give  the  parent  an  es- 
tate for  life  only.  It  is  dangerous,  where  words  have  a  fixed  legal 
effect,  to  suffer  them  to  be  controlled  without  some  clear  expression, 
or  necessary  implication.  lQ__this  case,  hjs^Rx^nec^ ,  thpt  the  testator 
did  not  mean  ^_u,s£j±i£-:v\x)rds _l^heirs  of  the  body."  in  ihgir  ordinary 
legal  sense,  because  there  are  other  inconsistent  words;  but  it  only 
follows  that  hejwas  ignorant  of~the  ettect"~oF~tHe^  one  or  of  the  other. 
All  the  cases'Hit  Doe  v.  Goff  decide  that  the  latter  words,  unless  they 
contain  a  clear  expression,  or  a  necessary  implication  of  some  intent, 
contrary  to  the  legal  import  of  the  former,  are  to  be  rejected.  That 
the  general  intent  should  overrule  the  particular,  is  not  the  most  ac- 
curate expression  of  the  principle  of  decision.  The  rule  is,  that  tech- 
nical words  shall  have  their  legal  effect,  unless,  from  subsequent  in- 
consistent words,  it  is  very  clear  that  the  testator  meant  othenvise. 
In  many  cases,  in  all,  I  believe,  except  Doe  v.  Goff,  it  has  been  held 
that  the  words  "tenants  in  common"  do  not  overrule  the  legal  sense  of 
words  of  settled  meaning.  In  other  cases,  a  similar  power  of  appoint- 
ment has  been  held  not  to  overrule  the  meaning  and  effect  of  similar 
words.  It  has  been  argued,  that  heirs  of  the  body  cannot  take  as  ten- 
ants in  common;  but  it  does  not  follow  that  the  testator  did  not  in- 
tend that  heirs  of  the  body  should  take,  because  they  cannot  take  in 
the  mode  prescribed.  This  only  follows,  that,  having  given  to  heirs 
of  the  body,  he  could  not  modify  that  gift  in  the  two  different  ways 
which  he  desired,  and  the  words  of  modification  are  to  be  rejected. 
Those  who  decide  upon  such  cases  ought  not  to  rely  on  petty  distinc- 


Ch.  7)  RULE  IN  Shelley's  case  123 

tions,  which  only  mislead  parties,  but  look  to  the  words  used  in  the 
will.  The  words,  "for  want  of  such  issue,"  are  far  from  being  suffi- 
cient to  overTTTfe-tfre'wof^  "Heirs  of  th"e~T)odv/^  They  have  almost 
constantly  been  construed  to  mean  an  indefinite  failure  of  issue,  and, 
of  'themjelygg;  haverfrequenTly^eeri  held  to  give  an  estate  tail.  In 
this  case  the  words,  "sucH~issue^^annot  be  construed  children,  except 
by  referring  to  the  words  "heirs  of  the  body,"  and  in  referring  to 
those  words  they  show  another  intent.  The  defendants  in  error  in- 
terpret "heirs  of  the  body"  to  mean  children  only,  and  then  they  say 
the  limitation  over  is  in  default  of  children ;  but  I  see  no  ground  to 
restrict  the  words  "heirs  of  the  body"  to  mean  children  in  this  will. 
I  think  it  is  necessary,  before  I  conclude,  to  advert  to  the  case  of  Doe 
V.  Goff.  It  seems  to  be  at  variance  with  preceding  cases.  In  several 
cases  cited  in  the  argument,  it  had  been  clearly  established,  that  a  de- 
vise to  A.  for  life,  with  a  subsequent  limitation  to  the  heirs  of  his 
body,  created  an  estate  in  tail,  and  that  subsequent  words,  such  as 
those  contained  in  this  will,  had  no  operation  to  prevent  the  devisee 
taking  an  estate  tail.  In  Doe  v.  Goff  there  were  no  subsequent  words, 
except  the  provision  in  case  such  issue  should  die  under  twenty-one, 
introducing  the  gift  over.  This  seems  to  me  so  far  from  amounting 
to  a  declaration  that  he  did  not  mean  heirs  of  the  body,  in  the  tech- 
nical sense  of  the  words,  that  I  think  they  peculiarly  show  that  he 
did  so  mean — they  would,  otherwise,  be  wholly  insensible.  If  they 
did  not  take  an  estate  tail,  it  was  perfectly  immaterial  whether  they 
died  before  or  after  twenty-one.  They  seem  to  indicate  the  testator's 
conception,  that,  at  twenty-one,  the  children  would  have  the  power  of 
alienation.  It  is  impossible  to  decide  this  case  without  holding  that 
Doe  V.  Goff  is  not  law. 

In  this  case,  even  admittjng  it  to  be  the  general  intent  of  the  tes- 
tator, to  give  to  William  an  estate  onlv  for  life,  the  remainders  to  the 
cliiTdren  might  as  easily  be  defeated,  because  William  might,  by  agree- 
ment with  the  heir,  have  destroyed~their  estates  before  they  arose. 
Suppose  he  had  had  a  child  who  died,  and  then  Tie  had  committed  a 
forfeiture,  the  devisee  over  would  have  entered  and  enjoyed  the  es- 
tate. Suppose  he  had  several  children,  and  some  had  died,  and  some 
had  been  living,  the  proportions  would  have  been  changed,  and  after- 
born  children  would  not  have  come  in  to  take  the  shares  of  those  who 
were  dead.  These  are  absurdities  arising  out  of  the  construction  pro- 
posed. If  the  testator  had  considered  the  effect  of  the  words  he  used, 
and  the  rule  of  law  operating  upon  them,  he  probably  would  have  used 
none  of  the  words  in  the  will. 

Judgment  reversed. ^^ 

12  "The  doctrine  that  the  general  intent  must  overrule  the  p{irtiVn1nr  in- 
tent has  been  much,  and  we  conceive  Justly,  objected  to  of  late ;  as  being,  as 
a  general  proposition,  incoi-rect  and  vague,  and  likely  to  lead  in  its  applica- 
tion to  erroneous  results.  In  its  origin,  it  was  merely  descriptive  of  the  op- 
eration of  the  rule  in  Shelley's  Case ;    and  it  has  since  been  laid  down  in 


124  CLASSIFICATION   OF  FUTURE   INTERESTS  (Part  1 

JORDAN  V.  ADAMvS. 

(Exchequer  Chamber,  1861.    9  C.  B.  [N.  S.]  4S3.) 

Chanxell,  B.^3  The  question  is  what  estate  William  Jordan  took 
under  the  fifth  head  of  devise  in  the  will  of  John  Jordan  set  out  in  the 
case. 

The  testator  by  his  will  devised  the  lands  in  dispute  to  trustees.  By 
the  fifth  head  of  his  will  he  directed  and  appointed  the  trustees  to 
stand  seised  thereof,  to  permit  the  said  William  Jordan  to  occupy  the 
same  or  receive  the  rents  and  profits  thereoT  for  his  own  use  during 
his  natural  life,  and.  after  his  decease,  then  to  permit  and  sutterlhF 
heirs  male  of  the  body  of  the  said  William  Jordan,to  occupy  the  same 
or  receive  the  rents  and  profits  thereof  for  their  several  natural  lives 
in  succession  according  to  their  respective  seniorities,  orjn  such  parts 
aiifd  proportions;  "manner  and^orm,~"and  amongst  thernTas'^the"  said 
William  Jordan  their  father,  should  directTTimit,  oF~appoint;    and,  in 

others,  where  technical  words  of  limitation  have  been  used,  and  other  words, 
showing  the' intention  of  the  testator,  that  the  objects  of  his  bounty  should 
talie  in  a  different  way  from  that  which  the  law  allows,  have  been  rejected; 
but  in  the  latter  cases,  the  more  correct  mode  of  stating  the  rule  of  construc- 
tion is.  that  technical  words,  or  words  of  known  legal  import,  must  have  their 
legal  effect,  even  though  the  testator  uses  inconsistent  words,  unless  those  in- 
consistent words  are  of  such  a  nature  as  to  malie  it  perfectly  clear  that  the 
testator  did  ncft  mean  to  use  the  technical  words  in  their  proper  sense ;  and 
so  it  is  said  by  Lord  Redesdale  in  Jesson  v.  Wright.  This  doctrine  of  gen- 
eral and  particular  intent  ought  to  be  carried  no  further  than  this;  and  thus 
explained,  it  should  be  applied  to  this  and  all  other  wills.  Another  undoubted 
rule  of  construction  is,  that  every  part  of  that  which  the  testator  meant  by 
the  words  he  has  used,  should  be  carried  into  effect  as  far  as  the  law  will 
permit,  but  no  further;  and  that  no  part  should  be  rejected,  except  what  the 
law  makes  it  necessary  to  reject."  Per  Lord  Denman,  C.  J.,  in  Doe  d.  Gal- 
lini  V.  Gallini,  5  B.  &  Ad.  621.  640  (1S33). 

"Another  rule  of  construction  has  been  referred  to  by  several  of  the  Irish 
as  well  as  by  some  of  the  English  judges,  viz.,  that  the  general  intention  of 
the  testator'  was  to  prevail  over  the  particular  iutentio'iu  This  doctrine, 
which  commenced,  I  believe,  with  Lord  Chief  Justice  Wilmot,  and  has  pre- 
vailed a  long  time,  had,  I  thought,  notwithstanding  the  use  of  those  terms 
by  Lord  Eldon  in  the  leading  case  of  Jesson  v.  Wright,  been  put  an  end  to  by 
Lord  Kedesdale"s  opinion  in  the  same  case,  and  by  the  powerful  arguments 
against  its  adoption  in  Mr.  Hayes's  Principles,  by  Mr.  Jarniau  in  his  excellent 
work  on  V/ills,  and  by  the  judgment  of  the  court  delivered  by  Lord  Denman 
in  Doe  v.  Gallini,  in  which  the  opinion  of  Lord  Kedesdale  is  approved  and 
adopted.  And,  certainly,  if_accurac-v  of  expression  is  important,  tlie  use  of 
those  terms  had  better  he  discontinued,  though  if  qualified  and  understood 
as  explained  iii  the  last-mentlOlled  case  and  in  the  opinion  of  some  of  the 
judges — Mr.  Baron  Watson,  for  example — it  can  make  no  difference  in  the 
result.  Lord  Redesdale  says  'that  the  general  intent  shall  overrule  the  par- 
ticular is  not  the  most  accurate  expression  of. the  principle  of  decision.  The 
rule  is  that  technical  words  shall  have  their  legal  effect,  unless  from  other 
words  it  is  verv  clear  that  the  testator  meant  otherwise.'  "  Per  Lord  Wens- 
leydale,  in  Kod'dy  v  Fitzgerald,  6  U.  L.  C.  82;^,  877  (18.3S). 

See  also  llayes,  Principles,  44,  106 ;    2  Jarm.  Wills  (4th  ed.)  484  et  seq. 

But  the  notion  that  the  Rule  in  Shelley's  Case  has  for  its  object  to  carry 
out  the  "general  intention,"  is  very  hard  to  kill.  See  Bowen  v.  Lewis,  9  Ap. 
Cas.  890,  907  (1884). 

13  The  opinions  only  are  given. 


Ch.  7)  RULE  IN  Shelley's  case  125 

default  of  such  issue  male  of  the  said  William  Jordan,  then  upon  trust 
to  and  for  the  use  ot  liis  brother,  Richard  Jordan,  and  liis-iieirg_male , 
in  such  parts,  sTiares^  and  proportiolTs,  manner  and  forin  as  the  said 
Richard  Jordan  shoutd^appomt,  charged,  in  case  the  said  Richard 
Jordan  or  his^lieirs"  sTfdu!d~T)ecome  seised  thereof,  with  the  sum  of 
i2,0C0  in  favor  of  the  daughters,  if  any,  of  the  said  W'ilHam  Jordan. 
Subject  to  the  performance  of  the  trusts  the  testator  limited  and  ap- 
pointed the  estates  to  the  right  heirs  of  Robert  Jordan,  forever. 

The  Court  of  Common  Pleas  decided  that  William  Jordan  took  under 
the  will  an  estate  fof"tiTe!  W^tlTthe  greatest  respect  tofThFjudgmerTT' 
of  that  coui%I  am  of  opinion  that  W'illiam  Jordan  took  an  estate  in 
tail  male ;  and  that  the  decision  appealed  against  ought  to  be  rever?5Ti7 
I'agreFTn  the  opinion  expressed  by  my  Brother  Williams  in  the  judg- 
ment of  the  court  below,  as  reported  in  the  6th  Common  Bench  Reports, 
N.  S.  p.  765,  that,  but  for  the  use^of  the  \vords  "their  fathet^"  in  the 
power  of  appointment,  an  estate  in  fee  'would  pass  by  the  gift  to  the 
heirs  male  of  the  body  of  William  Jordan.  This  consequence  seems  to 
me  to  follow  from  our  giving  to  the  words  "heirs  male  of  the  body" 
their  legal  import,  and  from  the  intention  apparently  expressed  in  the 
will  that  the  estate  should  go  over  to  Richard  Jordan  and  his  heirs 
male,  upon  failure  of  the  issue  male  of  William  Jordan,  and  not  until 
such  failure.  But  I  am  unable  to  concur  with  my  Brother  Williams  in 
the  conclusion  at  which — nof,  I  tliink,  without  great  doubt  and  hesita- 
tion— he  ultimately  arrived,  that  the  words  "their  father"  demonstrat- 
ed that  the  words  "heirs  male  of  the  body"  meant  "sons,"  or  that  the 
words  "heir  of  the  body"  could  be  controlled  by  the  words  "their  fa- 
ther," in  the  power  of  appointment,  as  interpreting  words,  showing  in 
what  sense  the  words  "heirs  male  of  the  body"  had  been  used  by  the 
testator. 

The  authorities  cited  on  the  argument  before  us  are  the  same  as 
those  which  were  cited  in  the  Court  of  Common  Pleas,  with  the  excep- 
tion of  Roddy  v.  Fitzgerald,  decided  by  the  House  of  Lords  (6  House 
of  Lords  Cases,  823).  All  these  authorities,  excepting  the  last,  are,  I 
believe,  collected  in  Jarman  on  Wills,  2d  edit.,  by  Wolstenholme  and 
Vincent,  vol.  2,  pages  267  and  299  and  following  pages,  ch.  Z7 ,  partic- 
ularly in  s.  3.  I  do  not  profess  to  reconcile  all  the  authorities.  I  think 
it  unnecessary  to  go  through  them  in  detail.  But  I  may  observe  that 
the  case  of  White  v.  Collins,  Com.  289,  much  relied  on  by  the  Court  of 
Common  Pleas  as  an  express  authority,  does  not  appear  to  me  to  be  so. 

The  devise  there  was,  to  one  for  life,  and,  after  his  decease,  to  the 
heir  male  (in  the  singular),  not  "heirs,"  in  the  plural.  There  are  other 
cases  in  which  the  word  used  was  "heir,"  and  not  "heirs."  This  dis- 
tinction is  not,  I  think,  immaterial.  The  word  "heir"  may  be  under- 
stood as  pointing  to  an  individual,  whereas  the  word  "heirs"  points  to  a 
class. 

The  leading  cases  appear  to  me  to  be  Jesson  v.  Wright,  2  Bligh,  L 
and  Roddy  v.  Fitzgerald,  6   House  of  Lords  Cases,  823. 


126  CLASSIFICATION   OF  FUTURE  INTERESTS  (Part  1 

The  rule  in  Jesson  v.  Wright,  as  I  understand  it,  is,  that  technical 
words  shall  have  their  legal  effect,  unless  from  subsequent  inconsistent 
words  it  is  very  clear  that  the  testator  meant  otherwise.  Roddy  v. 
Fitzgerald  upholds  and  explains  the  former  case  of  Jesson  v.  Wright. 
These  decisions  appear  to  me  to  give  the  rule  of  construction  which  we 
must  apply  to  the  present  case.  In  Roddy  v.  Fitzgerald  the  opinions 
of  the  judges,  both  in  Ireland  and  in  England,  were  reviewed  by  the 
House  of  Lords.  In  their  opinions  the  judges  were  nearly  equally  di- 
vided ;  indeed,  but  for  a  circumstance  noticed  by  Lord  Chancellor  Cran- 
worth  in  the  report  of  the  case,  the  opinions  of  the  judges  would  have 
been  equally  divided.  In  unison  with  the  opinions  expressed  by  a 
minority  of  the  judges,  I  humbly  submitted  that  the  words  "issue"  in 
Roddy  V.  Fitzgerald, — words  more  flexible  than  "heirs  of  the  body," 
— had  been  in  that  case  by  the  whole  context  of  the  will  explained  and 
interpreted  by  the  testator  himself  to  mean  "children."  The  House  of 
Lords  unanimously  rejected  this  construction,  and  held  that  the  words 
"issue"  there  used  must  have  their  ordinary  legal  import  and  eft'ect. 

This  case  of  Roddy  v.  Fitzgerald  is  treated  by  the  Court  of  Common 
Pleas  as  deciding  that  words  that  would  create  an  estate  tail  are  to  have 
that  effect,  unless  a  judicial  mind  sees  with  reasonable  certainty  from 
other  parts  of  the  will  tliat  the  testator's  intention  was  that  those  words 
should  not  operate  as  words  of  limitation  of  the  inheritance,  but  should 
be  words  of  purchase,  creating  an  estate  in  remainder  in  the  persons 
coming  within  the  designation  of  heirs  male  of  the  body,  and  within  the 
further  description  contained  in  the  will. 

This  is  no  doubt  so.  But  if,  by  reference  to  the  words  "their  father," 
in  the  power  of  appointment  in  the  will  in  question,  the  words  "heirs 
of  the  body"  are  explained  to  be,  and  are  to  be  read  as,  sons  (the  only 
ground  on  which,  as  it  appears  to  me,  the  decision  of  the  Court  of 
Common  Pleas  can  be  supported),  then  it  would  seem  to  me  to  follow, 
that,  if  William  Jordan  had  died  having  had  an  only  son  who  had  died 
in  his  lifetime,  but  had  left  a  son  who  survived  his  grandfather,  such 
grandson  would  take  nothing  under  the  will.  I  cannot  suppose  this 
to  have  been  the  testator's  intention  ;  and  I  am  therefore  unable  to  adopt 
the  argument  that  the  testator  has  interpreted  the  words  "heirs  of  the 
body"  as  meaning  "sons." 

In  determining  whether  the  legal  import  of  the  words  "heirs  of  the 
body"  is  to  be  cut  down,  we  must  not  surmise,  but  must  see  very  clear- 
ly that  the  alleged  interpreting  words  do  cut  down  other  words  which 
carry  with  them  a  recognized  legal  meaning. 

Consistently  with  Roddy  v.  Fitzgerald,  I  cannot  hold,  either  from 
the  power  of  appointment  or  the  general  context  of  the  will,  that  such 
was  in  the  present  case  the  intention  of  the  testator. 

I  am  of  opinion  that  the  judgment  of  the  Court  of  Common  Pleas 
ought  to  be  reversed. 

Martin,  B.  This  is  an  appeal  from  the  judgment  of  the  Court  of 
Common  Pleas :  and  the  question  is,  whether,  upon  the  construction  of 


Ch.  7) 


RULE  IN  Shelley's  case 


127 


a  devise  in  the  will  of  John  Jordan,  dated  the  8th  of  May.  1825,  Wil- 
liam Jordan  took  an  estate  in  tail  male.  The  substance  of  the  devise  is 
as  follows :  "As  to  certain  land  (describing  it),  I  direct  my  trustees  to 
stand  seised  thereof,  and  permit  William  Jordan  to  occupy  the  same  or 
receive  the  rents  and  profits  thereof  for  his  own  use  during  his  natural 
life ;  and,  after  his  decease,  then  to  permit  and  suffer  the  heirs  male  of 
his  body  to  occupy  the  same  or  receive  the  rents  and  profits  thereof  for 
their  several  natural  lives  in  succession  according  to  their  respective 
seniorities,  or  in  such  parts  and  proportions,  manner  and  form,  and 
amongst  them,  as  the  said  William  Jordan,  their  father,  should  by  deed 
or  will,  duly  executed,  direct,  limit,  or  appoint ;  and,  in  default  of  such 
issue  male  of  tlie  said  William  Jordan,  then  upon  trust  to  and  for  the 
use  of  Richard  Jordan  and  his  heirs  male,  in  such  parts  and  propor- 
tions, manner  and  form,  as  he  should  by  deed  or  will  direct  or  appoint, 
but  charged  with  the  sum  of  £2,000  for  the  daughters  (if  any)  of  the 
said  William  Jordan;  and  after  the  performance  of  the  said  trusts, 
and  subject  thereto,  that  the  said  trustees  should  stand  seised  of  the 
said  lands  to  and  for  the  use  of  the  right  heirs  of  Robert  Jordan,  for- 
ever." The  Court  of  Common  Pleas  were  of  opinion  that  William 
Jordan  took  an  estate  for  life  only.  All  agree  that  the  true  rules  of 
construction  are  laid  down  in  Jesson  v.  Wright,  2  Bligh,  1,  and  Roddy 
V.  Fitzgerald,  6  House  of  Lords  Cases,  823.  If  the  devise  had  not  con- 
tained the  powers  of  appointment,  I  ag2rehen(i_there  would"~have~been 
no^Joubt  BuFlHatlt  w(5ul3  have  giA^en^ajn^estate^uTi^^ 
JorcTarf.^     IFwoulcTliave  been  a'devise  to  him  for  life,  and,  after  his 

his  body,  to  occupy  the  same  or  take  the 


death,  to  the  heirs_mal 

rerfts  and~pfoHts'for  their  several  natural  livesjn  succession,  according 
to  their  respective  seniorities,  and,  in  default  of  such  issue  male,  to 
RicHar3~"jor3an7  This  would  express  the  intention  of  the  testator 
that  William  Jordan  should  have  the  land  for  his  life,  and  that,  after 
his  death,  his  male  heirs  as  a  class,  that  is,  in  succession  according  to 
their  respective  seniorities,  should  have  it.  It  is  true  it  wasjii^s  inten- 
tion  tliat  they  should  have  it  fortheir  lives  only,  and  witlfno  greater 
pdweFover  it  than  tenants  for  life  have :  but  this  the  law  doesnot  per- 
mit ;  and  it  seems  to  me  nothing  more  than  the  expression  of  an  inten- 
tiofTv^hicH"  by  la^^annot  be  effected.  Applyuig  tlie  rule  in  Shelley's 
Case,  1  Co.  Rep.  93  a,  which  is  a  technical  rule  of  law,  and  the  doc- 
trine of  Jesson  v.  Wright  and  Roddy  v.  Fitzgerald,  by  construction  of 
law  the  estate  of  William  Jordan  would  be  an  estate  in  tail  male.  I 
think  it  impossible  to  express  more  clearly  than  these  words  do  the 
original  estate  tail  contemplated  by  the  Statute  de  Donis,  viz.  an  es- 
tate for  life  in  the  donee,  and  a_series  of  life-estates  continuing  so  long 
as  there  w-ere  heirs  of  the  body_of_the  donee,  they  taking  in  succession 
in~flie~ordeirand*accordingto  theriile  ot  lineal 


ce.     This  is 

whaTan  estate  tail  in  substance  was.  until  the  courts  of  law  converted 
it  for  all  practical  purposes  into  an  estate  in  fee  simple. 


128  CLASSIFICATION  OF   FUTURE   INTERESTS  (Part  1 

The  judgment  of  the  Common  Pleas  is,  that  WiUiam  Jordan  took  an 
estate  for  life,  and  that  the  words  "heirs  male  of  his  body"  meant 
"sons ;"  so  that,  if  he  had  died  having  had  an  only  son,  who  had  died 
in  his  father's  lifetime,  leaving  a  son  who  survived'  his  grandfather, 
this  grandson  would  take  nothing  under  the  devise.  Is  this  correct 
either  in  construction  of  law  or  as  the  true  expression  of  the  will  of 
the  testator?  The  cases  of  Jesson  v.  Wright  and  Roddy  v.  Fitzgerald 
are  authorities  that  the  words  "heirs  of  the  body''  have  not  only  a  plain 
natural  meaning,  but  are  also  words  of  known  legal  import,  and  prima 
facie  denote  and  mean  the  whole  of  the  descendants  or  issue  as  a  class, 
and  are  to  be  read  and  understood  in  this  their  natural  and  legal  sense, 
unless  it  be  clear  that  the  testator  intended  to  use  them  in  a  different 
sense.  Lord  Wensleydale's  expression  in  Roddy  v.  Fitzgerald  is, 
"unless  a  judicial  mind  sees  with  reasonable  certainty  from  other  parts 
of  the  will  an  opposite  intention." 

I  agree  with  Mr.  Justice  Williams  that  the  only  other  parts  of  this 
will  to  show  the  opposite  intention  are  the  words  "their  father,"  in 
the  power  of  appointment.  The  testator  certainly  wished  that  the  heirs 
of  his  body  should  take  life-estates.  This  is  what  nine  tenths — proba- 
bly ten  tenths — of  testators  who  make  entails  wish ;  but  there  is  noth- 
ing in  the  expression  of  it  to  show  that  he  desired  that  the  grandchil- 
dren or  more  remote  descendants  of  William  should  not  take  at  all. 
If  the  words  had  been  "the  father,"  or  "the  ancestor,"  I  apprehend 
they  could  not  have  had  the  effect  of  altering  the  legal  import  of  the 
words  "heirs  male  of  the  body."  And,  in  my  opinion,  that  which  the 
testator  has  expressed,  and  in  all  probability  meant  and  intended,  was, 
that  William  Jordan  should  have  a  power  to  appoint  amongst  his  sons, 
but  not  that  the  estate  or  estates  previously  given  to  the  heirs  male 
of  his  body  should  be  altered  or  affected  otherwise  or  beyond  the  al- 
teration effected  by  the  exercise  of  the  power. 

It  appears  to  me  that  the  use  of  the  words  "in  default  of  such  is- 
sue," and  not  "in  default  of  such  sons,"  strongly  confirms  this  view. 
Had  the  words  used  been  "in  default  of  issue,"  I  should  have  thought 
it  conclusive.  Suppose  that  William  Jordan  were  dead,  and  the  liti- 
gant parties  were  his  grandson  and  Richard  Jordan, — can  it  be  said 
that  a  judicial  mind  would  clearly  see  from  the  language  of  the  will 
that  the  testator  meant  Richard  to  take,  and  not  the  grandson?  I 
think  not ;  and,  to  decide  against  the  grandson,  the  law  requires  that 
this  must  be  made  out,  and  that  clearly.  The  result  is,  to  say  the 
very  least,  that  I  do  not  think  there  is  sufficient  in  the  will  to  justify 
the  alteration  or  cutting  down  of  the  words  "heirs  male  of  the  body," 
which  are  words  having  a  plain,  clear,  natural  meaning,  and  are  also 
technical  words  of  a  known  legal  import  and  meaning,  into  "sons." 
I  cannot  bring  my  mind  to  the  conclusion  that  the  testator  has  ex- 
pressed his  will  to  be  that  Richard  Jordan  should  take  in  exclusion  of 
William's  grandchild. 


Ch.  7)  RULE  IN  Shelley's  case  129 

If  there  were  any  decision  upon  the  point,  I  would  readily  yield ; 
but  none  has  been  cited  before  us.  It  is  said  in  the  judgment  of  the 
Common  Pleas  that  the  case  of  White  v.  Collins,  1  Comyns,  2<S9,  is 
in  point  for  the  defendant.  I  do  not  agree  in  this  at  all.  The  devise 
there  was  to  a  son,  F.,  to  enjoy  during  his  life,  and,  after  his  death, 
to  the  heir  male  of  the  body  of  F.  (in  the  singular  number),  during 
the  term  of  his  natural  Hfe,  and,  for  want  of  such  heir  male,  to  an- 
other son,  C,  a  brother  of  F.'s.  Whatever  doubts  may  have  existed 
at  the  time  when  this  case  was  decided,  the  works  of  I\Ir.  Fearne,  a 
subsequent  writer,  have  abundantly  cleared  them  up :  and  it  seems 
to  me  that  the  words  of  that  will  clearly  express,  that  by  the  word 
"heir,"  was  meant  an  individual,  and  not  the  heir  of  the  body  of  F. 
as   a  class. 

I  quite  concur  with  Mr.  Justice  Blackstone  (1  Hargr.  Tracts,  page 
505)  that  common-sense  showed  the  meaning  of  the  expression  used. 
I  concur  also  with  the  Court  of  Common  Pleas  as  to  the  importance 
of  adhering  to  the  doctrine  of  Jesson  v.  Wright,  confirmed  in  Roddy 
V.  Fitzgerald ;  and  I  do  so  in  expressing  my  opinion  that  William 
Jordan  took  an  estate  tail. 

WiGHTMAN,  J.     I  am  of  opinion  that  the  judgment  of  the  Court  of 
Common~Tleas~is  right,  and  that  the  plaintiff  took  only  an  estate"  for ' 
li fe]tTr-tb€--picinises"in""qiiestion7~and  noI~aii  estate  tail,  either  legal  or 
equitable. 

The  testator  by  his  will  devised  all  his  freehold  and  leasehold  es- 
tates to  trustees,  and  directed  them,  as  to  the  premises  in  question, 
"to  permit  and  suffer  the  plaintiff  to  occupy  and  enjoy  or  to  receive 
and  take  the  rents,  issues,  and  profits  thereof  for  his  own  use  and 
benefit  during  his  natural  life,  and,  after  the  decease  of  the  plaintiff, 
then  to  permit  and  suffer  the  heirs  male  of  his  body  to  occupy  and 
enjoy  the  same  or  to  receive  and  take  fhe  rents,  issues,  and  profits 
thereof  for  their  several  natural  lives,  in  successi^on,  according  to  their 
respective  seniorities,  or  in  such  parts  and  proportions,  manner  and 
form,  and  amongst  them,  as  the  said  William  Jordan  (the  plaintiflf), 
their  father,  should  by  deed  or  will  direct ;  and,  in  default  of  such  is- 
sue male  of  the  said  William  Jordan,  then  over." 

The  question  is,  "whether  the  words  "heirs  male  of  his  body,"  as 
used  in  this  devise,  are  words  of  limitation  or  words  of  purchase ; 
and  it  appears  to  me,  that,  taking  the  whole  clause  together,  they  are 
words  of  purchase,  and  mean  the  sons  of  the  plaintiff',  wlio  are  to 
take  for  their  lives  in  succession,  according  to  seniority  or  in  such  pro- 
portions, manner  and  form  amongst  them  as  their  father  (the  plain- 
tiff) should  by  deed  or  will  direct.  I  am  unable  to  give  any  other 
meaning  to  the  clause  in  question ;  and,  though,  by  the  use  of  the 
words  "heirs  male  of  the  body,"  the  testator  may  be  supposed  to  have 
intended  to  give  an  estate  in  tail  to  the  plaintiff,  as  those  words  stand- 
ing alone  and  unexplained  by  the  rest  of  the  clause  would  be  words 
4  Kales  Prop. — 9 


130  CLASSIFICATION  OF  FUTURE   INTERESTS  (Part  1 

of  limitation  and  not  of  purchase,  yet  the  subsequent  words,  that  they 
(the  heirs  male)  are  to  take  the  profits,.  &c.,  of  the  estate  for  their 
natural  lives  in  succession,  according  to  their  respective  seniorities, 
or  in  such  manner  as  their  father  shall  by  deed  or  will  direct,  show 
too  clearly  in  my  opinion  to  admit  of  doubt,  that  the  testator,  by  "heirs 
male  of  the  body,"  meant  the  "sons"  of  the  plaintiff,  who  were  to 
take  in  succession  for  life,  or  in  such  parts  and  proportions  between 
them  as  their  father  should  direct. 

I  have  forborne  to  observe  upon  the  cases  which  were  cited  upon 
the  argument,  tlie  question  in  all  the  cases,  as  in  this,  being,  what  was 
the  intention  of  the  testator  by  the  terms  he  used  in  his  will ;  and  as 
everything  depends  upon  the  words  used,  it  seems  to  me  that  little 
assistance  is  derived  from  decisions  upon  terms  which  are  not  the  same 
as  those  used  in  the  will  in  question.  I  therefore  think,  drawing  my 
conclusion  from  the  terms  actually  used  by  the  testator  in  this  case, 
that  the  court  below  was  right  in  the  conclusion  to  which  it  came,  and 
that  the  judgment  should  be  affirmed. 

CocKBURN,  C.  J.     I  am  of  opinionthatjth^^ 
Coq^on'Pleas~5hDuldrbe  attinned;  ^uFbeing~unable  to  concur  in  all 
the  reasons~oh  which  the  decision  of  the  majority  of  that  court  ap- 
pears to  have  been  founded,  I  think  it  necessary  to  explain  the  grounds 
on  which  the  conclusion  I  have  arrived  at  is  based. 

We  are  called  upon  to  construe  a  devise,  whereby  a  testator  gives 
certain  estates  to  trustees,  in  trust  to  permit  one  William  Jordan  to 
occupy  and  enjoy  or  to  receive  and  take  the  rents  and  profits  for  his 
own  use  and  benefit,  during  his  natural  life,  and,  after  his  decease,  to 
permit  and  suffer  the  heirs  male  of  his  body  to  occupy  and  enjoy  the 
same,  or  to  receive  and  take  the  tents  and  profits,  for  and  during 
their  natural  lives,  in  succession,  according  to  their  respective  seniori- 
ties, or  in  such  parts  and  proportions,  manner  and  form,  and  amongst 
them,  as  the  said  William  Jordan,  their  father,  shall  by  deed  or  will 
duly  executed  and  attested  direct,  limit,  and  appoint;  and,  in  default 
of  such  issue  male  of  William  Jordan,  then  over. 

The  question  is,  whether  under  this  devise  William  Jordan  (who  is 
the  plaintiff  in  this  action)  took  an  estate  for  life  or  an  estate  tail; 
or — to  put  the  same  thing  in  another  form — whether  the  heirs  male 
of  his  body  took  an  estate  by  purchase  or  by  descent. 

Three  things  occurring  in  this  devise  are  relied  on  to  take  it  out  of 
the  ordinary  rule  that  a  gift  to  a  man  for  life,  with  remainder  to  the 
heirs  of  his  body,  creates  in  point  of  law  an  estate  tail  in  the  ancestor. 
These  are,  first,  that  the  devise  to  the  heirs  is  for  their  natural  lives; 
secondly,  that  their  estate  is  subject,  with  reference  botli  to  the  order 
of  succession  and  quantity  of  estate,  to  the  appointment  of  the  ances- 
tor ;  thirdly,  that  the  ancestor  is  distinctly  described  as  the  father  of 
the  heirs  male  of  the  body,  from  which  it  is  said  to  be  plain  that  the 
words  "heirs  male  of  the  body"  must  necessarily  be  read  as  sons. 

I  am  of  opinion  that,  in  construing  this  devise,  the  two  first  circum- 


Ch.  7)  RULE  IN  Shelley's  case  131 

stances  cannot  be  taken  into  account.  I  take  the  effect  of  the  authori- 
ties on  this  subject  clearly  to  be,  that  where  land  is  devised  to  a  man 
for  life,  with  remainder  to  his  heirs  or  the  heirs  of  his  body,  no  in- 
cident superadded  to  the  estate  for  life,  however  clearly  showing  that 
an  estate  for  life  merely,  and  not  an  estate  of  inheritance,  was  intend- 
ed to  be  given  to  the  first  donee,  nor  any  modification  of  the  estate 
given  to  the  heirs,  however  plainly  inconsistent  with  an  estate  of  in- 
heritance, nor  any  declaration,  however  express  or  emphatic,  of  the 
devisor,  can  be  allowed,  either  by  inference  or  by  the  force  of  express 
direction,  to  qualify  or  abridge  the  estate  in  fee  or  in  tail,  as  the  case 
may  be,  into  which,  upon  a  gift  to  a  man  for  life,  with  remainder  to 
his  heirs,  or  the  heirs  of  his  body,  the  law  inexorably  converts  the  en- 
tire devise  in  favor  of  the  ancestor,  notwithstanding  the  clearest  in- 
dication of  the  intention  of  the  donor  to  the  contrar}\  Thus,  with 
reference  to  the  estate  for  life,  although  the  donor  may  have  super- 
added to  it  some  incident  of  an  estate  of  inheritance, — for  instance,  as 
in  Papillon  v.  \^oice,  2  P.  Wms.  471,  unimpeachability  of  waste, — or, 
as  in  King  v.  ]\Ielling,  2  Lev.  58,  a  power  of  jointuring,  both  which 
provisions  would  have  been  superfluous  if  an  estate  of  inheritance  had 
been  intended;  or  although,  as  in  Coulson  v.  Coulson,  2  Str.  1125,  he 
may  have  interposed  trustees  to  presence  contingent  remainders, — a 
provision  palpably  inconsistent  with  the  estate  of  the  ancestor  being 
other  than  an  estate  for  life ;  or  though  he  may  have  declared  in  ex- 
press terms,  as  in  Perrin  v.  Blake,  4  Burr.  2579,  1  Sir  W.  Bl.  672,  that 
his  intention  in  creating  the  estates  for  life  was  to  prevent  any  of  his 
children  from  disposing  of  his  estate  for  longer  than  his  life;  or  al- 
though, as  in  Robinson  v.  Robinson,  1  Burr.  38,  he  may  have  expressly 
declared  that  the  estate  for  Hfe  should  last  for  the  Hfe  of  the  devisee 
and  no  longer ;  or,  as  in  Roe  d.  Thong  v.  Bedford,  4  M.  &  Selw.  362, 
has  declared  that  the  devisee  should  have  no  power  to  defeat  his  in- 
tent,— none  of  these  provisions  or  declarations  will  avail  anything. 
So,  on  the  other  side,  with  reference  to  the  estate  to  the  heir,  although 
the  devisor  may  have  annexed  to  it  incidents  wholly  inconsistent  with 
an  estate  by  descent, — as,  that  the  heirs  shall  take  according  to  the  ap- 
pointment of  the  ancestor  (as  in  Doe  d.  Cole  v.  Goldsmith,  7  Taunt. 
209),  or  that  the  heirs  shall  take  as  tenants  in  common  (as  in  Ben- 
nett V.  The  Earl  of  Tankerville,  19  Ves.  170),  or  share  and  share  alike 
(as  in  Jesson  v.  Wright,  2  Bligh,  1),  or  without  regard  to  seniority  of 
age  (which,  though  held  in  Doe  d.  Hallen  v.  Ironmonger,  3  East,  533, 
to  prevent  the  operation  of  the  rule,  would  nowadays,  it  seems,  receive 
an  opposite  construction;  see  2  Jarm.  Wills,  303), — no  inference 
arising  from  such  provisions  can  be  allowed  to  prevail  against  the  rule 
of  law ;  nay,  even  although  a  devisor  should  expressly  declare  that 
the  heirs  should  take  by  purchase  and  not  by  descent,  the  declaration 
would  be  set  aside  as  unavailing  (see  Harg.  Law  Tracts,  562). 

When  once  the  donor  has  used  the  terms  "heirs,"  or  "heirs  of  the"^ 
body,"  as  following  on  an  estate  of  freehold,  no  inference  of  inten- 


132  CLASSIFICATION  OF   FUTURE   INTERESTS  (Part   1 

tion,  however  irresistible,  no  declaration  of  it,  however  explicit,  will 
have  the  slightest  effect.     The  fatal  words  once  used^the  law  fastens 


uponthenijand  attaches  to  the^itro\VTrTTTeanIno^and  effecTaTToThe 
estatF^reateJ^h^Them,  and  rejects,  as  niconsistent  witlT'thelnain  pui^ 
pose  which  it  inexor^al^ly  and  despotically  fixes  on  the  donor,  all  the 
provisions  of  the  will  which  would  be  incompatible  with  an  estate  of 
inheritance,  and  which  tend  to  show  that  no  such  estate  was  intended 
to  be  created ;  although,  all  the  while,  it  may  be  as  clear  as  the  sun 
at  noonday  that  by  such  a  construction  the  intention  of  the  testator  is 
violated  in  every  particular. 

Such  being  the  principle  involved  in  the  decisions  of  the  House  of 
Lords  in  the  cases  of  Perrin  v.  Blake,  4  Burr.  2579,  1  W.  Bl.  672; 
Jesson  V.  Wright,  2  Bligh,  1 ;  and  Roddy  v.  Fitzgerald,  6  House  of 
Lords  Cases,  823,  it  appears  to  me  that  we  cannot  give  any  effect  to 
the  provisions  of  this  devise  that  the  heirs  shall  take  by  appointment, 
or,  in  default  of  it,  in  succession,  for  their  natural  lives.  If,  indeed, 
the  matter  were  res  integra,  I  should  entirely  concur  with  the  ma- 
jority of  the  Court  of  Common  Pleas  in  thinking  that  these  provisions 
ought  to  be  conclusive  as  to  the  intention  of  the  testator.  Speaking 
under  the  shadow  of  the  great  names  of  Lord  }\Iansfield  and  Lord 
Ellenborough,  and  the  eminent  judges  of  the  Court  of  Queen's  Bench 
who  were  parties  to  the  decisions  of  that  court  in  Perrin  v.  Blake  and 
Doe  d.  Strong  v.  Goff,  11  East,  668,  and  of  those  who  in  the' Com- 
mon Pleas  decided  the  cases  of  Crump  d.  WooUey  v.  Norwood.  7 
Taunt.  326,  and  Gretton  v.  Haward,  6  Taunt.  94,  I  have  no  hesitation 
in  saying,  that,  but  for  the  decisions  of  the  supreme  court  of  appeal,  I 
should  certainly  have  held  that  an  arbitrary  rule  of  law  as  to  the  ef- 
fect of  certain  words  might  well  be  m.ade  to  yield,  as  similar  rules 
have  in  other  instances  been  made  to  yield,  in  construing  a  devise,  to 
the  rule, — one  of  paramount  importance  in  construing  wills  and  de- 
vises,— that  effect  is  to  be  given  to  the  intention  of  the  testator;  con- 
formity to  which  is  in  my  opinion  ill  obtained  by  forcing  on  the  tes- 
tator a  meaning  directly  the  reverse  of  what  he  really  intended.  But 
we  are,  of  course,  bound  by  the  decisions  of  the  House  of  Lords ;  and 
as  the  law  has  been  there  settled,  so  we  must  apply  it. 

But  although  the  rule  thus  established  is  inllexible  to  the  extent  I 
have  stated,  there  is,  nevertheless,  one  quarter  from  which  it  permits 
light  to  be  let  in  and  effect  to  be  given  to  the  real  intention  of  the  tes- 
tator :  this  is  where  by  some  explanatory  context,  having  a  direct  and 
immediate  bearing  upon  the  term  "heirs,"  or  "heirs  of  the  body,"  the 
devisor  has  clearly  intimated  that  he  has  not  used  these  words  in  their 
technical,  but  in  their  popular  sense,  namely,  that  of  sons,  daughters, 
[_or  children,  as  the  case  may  be.  An  illustration  of  this  branch  of  the 
rule  is  given  by  Lord  Brougham  in  his  judgment  in  Fetherston  v. 
Fetherston,  3  CI.  &  F.  67:  "If  there  is  a  gift  to  A.  and  the  heirs  of 
his  body,  and  then,  in  continuation,  the  testator,  referring  to  what  he 
had  said,  plainly  tells  us  that  he  used  the  words  'heirs  of  the  body' 


Ch.  7  RULE  IN  Shelley's  case  133 

to  denote  A.'s  first  and  other  sons,  then  clearly  the  first  taker  would 
only  take  a  life  estate." 

This  appears  to  ma  to  be  directly  applicable  to  the  present  case,  with 
reference  to  the  direction  of  the  testator,  following  immediately  on 
the  devise  to  the  heirs  male  of  the  body  of  William  Jordan,  that  they 
shall  take  "in  such  parts,  proportions,  manner,  and  form,  and  amongst 
them,  as  the  said  William  Jordan,  their  father,  shall  direct."  ^^'e  can- 
not reject  these  words :  there  is  no  audiority  for  saying  that  the  par- 
ticular intent  is  to  yield  to  the  general  one, — at  all  times  an  unsatisfac- 
tory rule, — to  the  extent  that,  where  the  testator  has  himself  afforded 
a  clear  indication  of  the  sense  in  which  he  has  used  the  words,  we  are 
to  reject  his  own  interpretation,  in  order  to  preserve  the  legal  eft'ect 
of  the  term  "heirs  of  the  body :'"  on  the  contrary,  the  cases  of  Lowe 
V.  Davies,  2  Ld.  Raym.  1561  (per  nom.  Law  v.  Davis,  2  Stra.  849,  1 
Barnard.  238),  of  Lisle  v.  Gray,  2  Lev.  223,  and  Goodtitle  d.  Sweet  v. 
Herrin,  1  East,  264,  3  B.  &  P.  628  (in  which  last  case  the  judgment 
of  the  Queen's  Bench  was  affirmed  in  the  House  of  Lords),  and  the 
cases  of  North  v.  ^lartin,  6  Sim.  266,  and  Doe  d.  Woodall  v.  Woodall, 
3  C.  B.  349,  establish  conclusively,  that  where,  following  on  a  gift  to 
heirs  of  the  body,  the  term  "son  or  sons,"  "daughter  or  daughters," 
or  "child  or  children,"  is  used  in  apposition,  as  it  were,  to  the  term 
"heirs  of  the  body,"  the  latter  is  to  be  taken  in  its  more  restricted  and 
not  in  its  legal  sense.  The  cases  of  Pope  v.  Pope,  14  Beav.  591 ; 
Gummoe  v.  Howes,  23  Beav.  184;  and  Smith  v.  Horsfall.  25  Beav. 
628,  are  equally  in  point  as  establishing  that  the  same  eft'ect  is  pro- 
duced in  limiting  the  term  "issue,"  which,  when  unexplained  by  the 
context,  has,  as  is  now  well  established,  the  same  force  as  the  term 
"heirs  of  the  body."  In  Smith  v.  Horsfall,  the  ^Master  of  the  Rolls 
says :  "Issue  here  means  children ;  and  such  is  its  signification  in  all 
cases  where  a  direct  reference  is  made  to  the  parent  of  the  issue.  I 
entertain  no  doubt  on  the  point :  and  I  should  be  unsettling  the  law 
if  I  were  to  hold  the  contrary." 

It  is  quite  plain,  according  to  these  authorities,  that  if,  in  the  pres- 
ent devise,  the  devisor,  after  the  gift  to  the  heirs  male  of  the  body  of 
William  Jordan,  had  gone  on  to  say,  "the  said  sons  of  the  said  Wil- 
liam Jordan  to  take  in  such  parts,  &c.,  as  the  said  William  Jordan  shall 
appoint,"  this  direction  must  have  had  the  effect  of  giving  to  the  term 
"heirs  male  of  the  body"  the  more  limited  meaning  of  "sons."  Now 
this  although  in  another  form,  the  testator  has  to  all  intents  and  pur- 
poses done;  for  what  possible  diff'erence  can  there  be  between  speak- 
ing of  the  heirs  of  the  body  as  the  sons  of  the  first  taker,  and  of  the 
first  taker  as  the  father  of  the  heirs?  Instead  of  using  the  one  form 
of  expression,  the  testator  has  used  the  correlative  and  corresponding 
one,  and  one  altogether  equipollent  in  eff'ect.  He  has  given  his  own 
key  to  the  meaning  of  the  words  "heirs  of  the  body  of  William  Jor- 
dan," namely,  those  heirs  of  the  body  of  William  Jordan  of  whom 
William  Jordan  is  the  father;    that  is,  the  sons  of  William  Jordan. 


134  CLASSIFICATION  OF  FUTURE   INTERESTS  (Part  1 

The  authorities  are  as  strong  for  giving  effect  to  such  an  exposition 
of  a  testator's  meaning  of  the  term  "heirs  of  the  body,"  where  it  ex- 
ists, as  for  enforcing  the  technical  meaning  where  it  does  not.  We 
have  no  right,  as  it  seems  to  me,  to  reject  these  words,  or  to  hold  them 
to  mean  something  else,  so  as  to  give  to  William  Jordan  an  estate  tail ; 
more  especially  as  all  the  other  provisions  of  the  devise  lead  only  to 
the  conclusion  that  the  testator  never  entertained  the  intention  to  give 
him  any  such  estate. 

Nor  am  I  embarrassed  by  the  use  of  the  words  "in  default  of  such 
issue,"  which  follow  in  the  ensuing  limitation.  The  word  "issue"  is; 
as  every  one  knows,  a  flexible  term;  if  the  term  "heirs  of  the  body" 
can  be  controlled  by  an  explanatory  context,  the  term  "issue"  cannot 
be  less  susceptible  of  being  modified  in  like  manner.  The  "issue"  here 
spoken  of  are  plainly  the  same  as  were  previously  spoken  of  as  "heirs 
male  of  the  body."  If  the  latter  are  shown  by  the  context  to  have 
been  the  sons  of  William  Jordan,  such  also  must  be  the  meaning  of 
the  term  "such  issue." 

The  judgment  of  the  House  of  Lords  in  the  case  of  Roddy  v.  Fitz- 
gerald, which  was  pressed  on  us  in  the  argument,  does  not,  as  it  ap- 
pears to  me,  conflict  with  this  view.  It  was  not  at  all  intended  by  that 
decision,  as  I  read  the  judgments  of  Lord  Cranworth  and  Lord  Wens- 
leydale,  to  overrule  the  numerous  cases  at  common  law  and  in  equity 
to  which  I  have  last  referred ;  or  all  that  class  of  cases  (collected  in 
2  Jarm.  Wills,  273-277),  in  which  the  term  "issue"  has  been  cut  down 
to  mean  sons,  daughters,  or  children,  by  the  testator  having  used  one 
or  other  of  those  terms  in  the  context  of  the  will.  Lord  Cranworth 
expressly  says, — "Where  the  testator  shows  upon  the  face  of  his  will 
that  he  must  have  used  technical  words  in  another  than  their  technical 
sense,  there  is  no  rule  that  prevents  us  from  saying  that  he  may  be 
his  own  interpreter ;  "  and  again,  "The  word  'issue'  when  used  in  a 
will  is  prima  facie  a  word  of  limitation ;  but  if  the  context  makes  it 
apparent  that  the  word  is  not  so  used,  then  it  may  be  treated  as  a 
word  of  purchase."  The  question  in  the  case,  as  put  by  Lord  Cran- 
worth, was,  whether  in  a  devise  to  testator's  son  William  for  life  with 
remainder  to  his  issue,  in  such  manner,  shares,  and  proportions  as  he 
should  appoint,  and  in  default  of  such  appointment,  then  to  the  issue 
equally,  if  more  than  one,  and  if  only  one  child,  to  the  said  child; 
and  on  failure  of  issue,  over, — there  was  anything  in  the  context  to 
control  the  ordinary  effect  of  the  term  "issue."  And  the  House  of 
Lords  held  that  there  was  not.  "Issue"  being,  as  was  pointed  out  by 
Lord  Wensleydale,  prima  facie  equivalent  to  heirs  of  the  body,  the 
direction  that  the  heirs  should  take  according  to  the  appointment  of 
the  ancestor,  or,  in  default  of  appointment,  in  equal  shares,  was  al- 
together inoperative,  as  settled  by  the  authority  of  Jesson  v.  Wright. 
The  further  provision,  which  seems  to  have  been  added  by  the  tes- 
tator unnecessarily  and  ex  nimia  cautcla,  that  in  the  event  of  there 
being  but  one  child,  that  child  should  take  the  whole,  did  not  appear 


Ch.  7)  RULE  IN  Shelley's  case  135 

to  their  Lordships  strong  enough  to  control  the  larger  sense  of  the 
word  "issue."  But  there  is  nothing  to  show  that,  if  the  context  had 
been  sufficiently  clear  and  strong  for  that  purpose,  their  Lordships 
would  not  have  given  effect  to  it.  On  the  contrary,  as  I  have  pointed 
out,  Lord  Cranworth's  language  is  a  clear  recognition  of  the  existence 
of  the  rule  as  I  have  stated  it  farther  back.  Looking  at  that  language, 
I  cannot  but  think  that  if,  in  Roddy  v.  Fitzgerald,  the  testator  had, 
as  in  the  present  instance,  described  the  first  taker  as  the  father  of 
those  whom  he  spoke  of  as  his  issue,  effect  would  have  been  given  to 
so  striking  an  exposition  of  his  meaning.  I  find  no  intimation  of  any 
intention  to  overrule  the  numerous  cases  already  referred  to  in  which 
the  more  general  terms  "heirs  of  the  body"  and  "issue"  have  been 
restricted,  by  words  used  in  juxtaposition  importing  issue  in  the  first 
generation  only,  to  the  latter  more  limited  meaning.  Nor  can  I  sup- 
pose that  their  Lordships  would  have  overruled  such  a  series  of  au- 
thorities silently,  and,  as  it  were,  by  implication,  or  without  a  clear 
intimation  of  their  intention  to  do  so.  I  therefore  consider  them  as 
still  in  force  and  binding  upon  us. 

Being,  then,  of  opinion  that  the  devisor  has  afforded  a  clear  indi- 
cation of  the  sense  in  which  he  has  used  the  term  "heirs  male  of  the 
body,"  namely,  that  of  sons, — from  which,  of  course,  it  would  follow 
that  no  estate  of  inheritance  was  created,  and  that  consequently  Wil- 
liam Jordan  took  only  an  estate  for  life, — I  hold — but  on  this  ground 
alone — that  the  judgment  of  the  Court  of  Common  Pleas  should  be 
affirmed. 

The  court  being  thus  equally  divided,  the  Lord  Chief  Justice  inti- 
mated that  if  the  parties  wished  to  carry  the  case  further,  one  of  its 
members  would  withdraw  his  opinion,  so  that  the  judgment  of  the 
Court  of  Common  Pleas  might  stand. 

Affirmed." 

14  In  Evans  v.  Evans,  [1802]  2  Ch.  173  (C.  A.),  the  limitations  were  to  A. 
for  life,  tlieii  fo^  sucli  itersons  as  A.  should  appoint  by  will,  and  in  default  xif 
appointment  "to  the  use  of  such  person  or  persons  as  at  the  decehse  of  the 
sai(T~S:.  ahull  ha  his  lieir  ^jeirs  at  law,  and  of  the  heirs^aJid-assi.mis  of  such 
person  or  nersons."  "Held,  the  rule  in  SheiJBy's  Case  didnot  nnplv. 

In"  file  tottowing  cases  it  was  held  tffat  the  rule  in  Shelley's  Case  did 
not  apply:  Peer  v.  Hennion,  77  N.  J.  Law,  693,  76  Atl.  itiST,  L'y  L,.  ii.-^ 
(Nr  ts.V'j45  (remainder  "to__such  person  or  persons  as  shall  be  her.h^  or 
heirs  of  lands  held  by  her  in  'tee  simple");  Taylor  v.  Cleary,  29  uratVp  a.) 
44S~(reiimiiider  "L(^  such-person  or  persons  as  shall  at  that  time  [the  death  of 
the  life  tenant,  R.]  answer  the  description  of  heir  or  heirs  at  law  of  the  said 
R.,  and  such  person  or  persons  shall  take  the'^aid  land  under  that  descrii)- 
tion  as  purchasers  under  and  by  virtue  of  this  deed,  and  not  by  inheritance 
as  heirs  of  the  said  R.") ;  Earnhart  v.  Earnhart,  127  Ind.  397,  26  N.  E.  895, 
22  Am.  St.  Rep.  652  (remainder  "to  the  persons  who  would  have  inherited 
the  same  from  the  said"  life  tenant  "had  Tie  OWned  the  same  in  fee  simple 
at  the  time  of  his  death").  In  Robinson  v.  Le  Grand  &  Co.,  65  Ala.  Ill,  it 
was  provided  that  after  the  life  tenant's  death  the  land  "shall  pass  according 
to  the  statutes  of  descent  and  distribution  of  the  state  of  Alabama  now  in 
force."     The  rule  did  1K)L  u|iply.'  '       ^  ~"  " 

In  Cook,  V.  Councilman,  109  Md.  622,  72  Atl.  404,  the  rule  in  Shelley's  Case 
was  held  to  apply  where  the  remainder  was  limited  "to  such  person  or  per- 


136  CLASSIFICATION   OF   FUTURE   INTERESTS  (Part   1 


^TNA  LIFE  INS.  CO.  v.  HOPPIN. 

(Circuit  Court  of  Appeals,  Seveutli  Circuit,  1914.     214  Fed.  928,  131  C.  C.  A. 

224.) 

In  Error  to  the  District  Court  of  the  United  States  for  the  Southern 
Division  of  the  Southern  District  of  IlHnois ;  J.  Otis  Humphrey,  Judge. 

Ejectment  by  the  .^tna  Life  Insurance  Company  against  FrankHn 
M.  Hoppin  and  others.  Judgment  for  defendants,  and  plaintiff  brings 
error.    Aflirmed. 

Wilham  Jack,  of  Peoria,  111.,  for  plaintiff  in  error. 

Albert  M.  Kales,  of  Chicago,  Jll,  for  defendants  in  error. 

Before  Baker,  Seaman,  and  Mack,  Circuit  Judges. 

Baker,  Circuit  Judge.  Plaintiff  in  error  was  plaintiff  in  this  action 
of  ejectment.  The  cause  was  submitted  to  the  court,  without  a  jury, 
on  an  agreed  statement  of  facts.    Judgment  was  for  defendants. 

In  1862  Fassett,  owner  in  fee  of  land  in  Illinois,  deeded  it  to  "Frank- 
lin Hoppin  and  Sarah  Hoppin,  his  wife,  during  their  natural  lives  arid 
the  life  of  tlipsnrvivor  of  them,  and  at  the  death  of  the  survivor  to  the 
heirs  ot  the  body  of  said  Sarah,  their  heirs  and  agsigrns. 

fenUlD~dkd  in  1865":  Sarah,  in  1908.  In  i862.\vhen  the  Fassett 
deed  was  made,  defendants  Hoppin  and  Garland^on  and  daugliter 
of  Franklin  and  Sarah,  were  in  being ;  and  they  were  the  only  cfuIdfeTr 

sons  asjaauld.  under  the  laws  of  the  statft  of  Arnryland^inhen^.U3es^ 
the^]geirsor~my  said  nephew  [the  iTfetenant]  if  he  liacTdTed  intestale~seise<i 
in'  f  e^5herei)f  ."^ 


[u\  an  Grutteu  v.  Foxwell,  [189T]  App.  Cas.  658  (H.  of  L.),  the  limitations 
were  iiTsulJstance  toTFie  testator's  child  or  children  for  life,  and  after  the 
death  of  such  child  or  children  to  the  heirs  of  the  tody  and  bodies  of  such 
child  or  children,  if  more  than  one,  to  lie~etTtrTrnj'  divided  between  tirellJ.  tJliCh" 
lands  to  hB-J4H<alS:^conveyed  and  assured  unto  such  heirs  of  any  child  or  chil- 
d  ren  in  ecpialsha  res  as  they  should  severallTluid  respectivel.v  attain  the  age 
of'^wi'iify-one  years,  or  he  married,  and  to  their  several  and  respective  neirs~ 
anTPassi.L'ns  lorevef.     Power  was  given  to  the  trustees  in  the  meantime  to 
apply  the  rents  and  prolits  in  and  about  the  maintenance  and  education  of 
such  heirs  of  his  child  or  children.    There  was  a  gift  over  if  it  should  happen 
that  the  testator  should  depart  this  life  leaving  no  child  or  children,  or  issue 
of  any  child  or  children,  or  if  such  child  or  children  as  he  should  leave  and 
the  issue  of  such  child  or  children  should  die  before  ho,  she,  or  they  should 
attain  the  age  of  twenty-one  years  or  be  married.    It  was  held  that  the_rule_ 
in  Shelley's  Case  did  apply. 

"Superadded  words' oT  limitation  and  distribution  alone  do  not  prevent  the 
application  of  the  rule  in  Shelley's  Case.  Mills  v.  Seward,  1  J.  &  H.  73.3; 
Anderson  v.  Anderson,  .30  Beav.  209.  The  following  cases,  contra,  must  be 
regarded  as  overruled  in  England:  Doe  v.  Laming,  2  Burr.  1100;  Grettou  v. 
Howard,  6  Taunt.  94 ;    Crump  v.  Norwood,  7  Taunt.  362. 

A  foitiori.  Avhen  superadded  words  of  limitation  only  are  used,  the  rule 
applies.  Wright  v.  Pearson.  1  Eden.  119;  Measure  v.  Gee,  5  B.  &  Aid.  910; 
Kinch  V.  Ward,  2  S.  &  St.  409.  ^lany  American  jurisdictions  follow  the  same 
ruling.  Barlow  v.  Barlow,  2  N.  Y.  .3S6;  Brown  v.  Lyon.  6  X.  Y.  419;  Wight 
V.  Thayer,  1  Gray  (Mass.)  284;  Hall  v.  Thay(>r,  5  Gray  (Mass.)  523;  Man- 
chester V.  Durfee.  5  K.  L  549;  Ex  parte  INIcP.ee,  03  N.  C.  332;  Clark  v. 
Neves,  76  S.  C.  4,S4,  57  S.  E.  614,  12  L.  R.  A.  (N.  S.)  298;  Carroll  v.  Burns, 
108  Pa.  386 ;  Kepler  v.  Larson,  131  Iowa,  438,  108  N.  W.  1033,  7  L.  K.  A.  (N. 
S.)  1109. 


Ch.  7)  RULE  IN  Shelley's  case  137 

ever  borri  to  Sarah.  Defendant  Vangieson  is  tenant  of  his  codefend- 
ants. 

Plaintiff  claims  title  under  an  execution  sale  on  a  judgment  against 
defendants  Iloppin  and  Garland.  Judgment  was  rendered  in  1874; 
execution  was  levied  and  sale  was  had  in  1875 ;  and  deed  thereon  was 
made  in  1877. 

Ever  smce  territorial  days  there  has  been  a  provision  in  Illinois 
(111.  St.  An.  c.  28,  §  1)  that  the  common  law  of  England  and  the  gen- 
eral acts  of  Parliament  in  aid  thereof,  prior  to  1606,  shall  be  in  force 
until  repealed  by  legislative  authority.  Since  1819  for  descent  by  pri- 
mogeniture has  been  substituted  descent  to  surviving  children  and  de- 
scendants in  equal  parts,  descendants  of  a  deceased  child  taking  the 
child's  share  in  equal  parts.  111.  St.  An.  c.  39,  §  1.  The  statute  de 
donis  (a  part  of  the  English  law  adopted  by  Illinois),  by  which  a  con- 
ditional fee  was  converted  into  a  fee  tail,  has  been  barred  since  1827 
from  taking  effect,  and  what  would_be^  fee  tail  under  the  EnglTsIflaw 
has  been  cbajTgpd  to  a  life  estate  in  the  donee  and__a_remainder  in  fee 
simple  to  tlie  next  taker.    111.  St.  An.  c.  30.  §  6. 

Ifjjy^he  j-'assett  deed  "the  heirs  of  the  body  of  Sarah"  took  a  con- 
tingent remainder,  plaintiff'  does  not  deny  that  the  execution  sale  was 
ineft'ective  to  pass  anv  mterest  ni  the  land.  Baker  v.  Copenbarger,  15 
III.  103,  58  Am.  Dec.  600;  Haward  v.  Peavey,  128  111.  430,  21  N.  E. 
503,  15  Am.  St.  Rep.  120;  Ducker  v.  Burnham,  146  111.  9,  34  N.  E.  558, 
37  Am.  St.  Rep.  135;  Hull  v.  Ensinger,  257  111.  160,  100  N.  E.  513. 

So  the  question  is :  What  estate  or  estates  were  created  by  the  Fas- 
sett  deed  in  1862  under  the  common  law  as  modified  in  the  two  par- 
ticulars named? 

yEtna  Life  Ins.  Co.  v.  Hoppin,  249  111.  406,  94  N.  E.  669.  is  an  exact 
precedent.  That  was  an  ejectment  case  between  these  parties,  involv- 
ing the  same  Fassett  deed  and  the  same  execution  sale.  Plaintiff'  pre- 
vailed in  the  trial  court.  On  appeal  the  judgment  was  reversed  and 
the  cause  remanded  for  retrial.  Thereupon  plaintiff  dismissed,  and  on 
appeal  its  right  to  do  so  was  upheld.  255  111.  115,  99  N.  E.  375. 
Though  the  decision  has  no  force  as  an  adjudication,  it  is,  what  cited 
authorities  rarely  are,  a  case  squarely  in  point  on  the  very  language 
presented  to  us  for  construction.  Exercising  an  undoubted  right, 
plaintiff  asks  us  to  say  whether  that  case  was  correctly  decided. 

Shelley's  Case  has  no  application,  and  therefore  section  6  of  chapter 
30  IS  to  be  disregarded,  in  a  deed  to  A.  and  his  heirs,  or  heirs  of  his 
body,  ihe  w^ord  '  heirs"  is  descriptive  of  the  quality  of  estate  given  to 
A.  "Heirs,"  in  the  absence  of  a  contrary  definition  clearly  furnished 
by  the  donor,  intends  an  unending  line  of  succession  by  inheritance. 
Though  A.  has  a  fee  simple  or  fee  tail,  his  capacity  to  enjoy  the  es- 
tate, if  not  alienated,  is  coterminous  with  his  life.  So,  when  a  convey- 
ance to  A.  for  his  use  during  life  and  then  to  his  heirs  or  heirs  of  his 
body  came  up  for  construction,  it  was  held  in  Shelley's  Case  that  the 
word  "heirs"  was  a  word  of  limitation,  descriptive  of  A.'s  estate,  and 


138  CLASSIFICATION   OF  FUTURE   INTERESTS  (Part  1 

not  a  word  of  purchase,  descriptive  of  grantees  in  remainder;  that  the 
donor  either  actually  intended  A.  to  have  an  estate  in  fee,  or,  if  his  in- 
tent was  that  A.  should  take  only  a  life  estate,  his  failure  to  supply  a 
new  lexicography  for  "heirs"  left  his  wish  as  one  impossible  of  gratifi- 
cation, namely,  that  the  law  should  not  be  enforced.  In  the  present 
deed,  however,  the  context  displays  the  sense  in  which  the  grantor  used 
the  words  "heirs  of  the  body  of  Sarah."  Th^  context  is  "Sarah  for 
life^  then  the  heirs  of  her  body,  their  heirs  and  assigns."  He  did  not 
inteiidthatJSiara^should  have  a  fee~slmple,  foTTEere  is  no  limitation 
to  liTr^ne^rnllieTrsriiLJinending  sUCcessjon.  He  didnoi  intend  that 
she  should  have  a  fee  tail,  for  the  words  oTlimitation  jre  not  restricted 
mereWjn  the  stream  of  her  blood  so  long  as  it  shall  continue.  He  in- 
tended, what  he  plainly  said,  that  Sarah  should  have  only  a  life  estate ; 
and  since,  therefore,  the  heirs  of  the  body  of  Sarah  were  not  to  take 
from  her  by  descent,  he  intended  that  they  should  take  by  purchase; 
and  since  the  description  of  the  purchasers  is  followed  by  the  words  of 
limitation  "their  heirs  and  assigns,"  he  intended  that  those  purchasers 
should  take  the  remainder  in  fee  simple.  Such  we  believe  is  the  natu- 
ral reading  of  the  deed,  and  such  an  interpretation  is  likewise  required 
by  the  rule  in  Archer's  Case,  1  Co.  66b,  decided  in  1597,  when  read 
wnth  primogeniture  in  mind. 

There  the  devise  was  to  Robert  Archer  for  life,  and  "afterwards  to 
the  next  heir  male  of  Robert,  and  to  the  heirs  male  of  the  body  of  such 
next  heir  male."  H  the  devise  had  been  to  Robert  for  life,  and  then  to 
his  next  heir  male,  the  word  "heir"  could  have  been  construed  in  a  col- 
lective sense  to  denote  an  indefinite  succession  through  Robert's  blood 
in  the  male  line,  and  so  under  Shelley's  Case  an  estate  in  fee  tail  would 
have  been  created.  But  the  added  words,  "and  to  the  heirs  male  of  the 
body  of  such  next  heir  male,"  required  attention  to  be  given  to  the 
facts  that  the  drafter  of  the  instrument  was  using  the  plural  form 
"heirs"  when  he  intended  an  indefinite  succession  by  inheritance;  that 
the  indefinite  succession  was  to  spring,  not  from  Robert,  but  from  the 
next  heir  male  of  Robert ;  and  that  the  singular  form,  "next  heir  male 
of  Robert,"  therefore,  could  not  properly  be  taken  as  nomen  collecti- 
vum,  but  was  a  description  of  that  person  w^ho  by  primogeniture  could 
at  Robert's  death  answer  as  his  next  heir  male.  Consequently  the 
holding  was  that  the  next  heir  male  of  Robert  took  by  purchase  and 
constituted  a  new  stock  of  descent.  Robert's  next  heir  male  became 
the  first  holder  of  a  fee  tail.  If  the  added  words  of  limitation  had  been 
to  the  general  heirs  of  such  next  heir  male,  so  that  the  next  heir  male 
as  purchaser  would  have  acquired  a  fee  simple,  as  is  the  wording  here, 
there  would  have  been  even  less  room  for  contending  that  Robert  Ar- 
cher was  given  a  fee  tail. 

Under  the  English  law  of  primogeniture  no  ancestor  could  leave  sur- 
viving him  more  than  one  heir.  If  he  left  sons,  the  eldest  was  his  heir. 
If  daughters  only,  they  took  as  one  heir  as  coparceners.  So  a  deed  to 
A.  for  life  and  then  to  the  heir  of  his  body  might  have  different  mean- 


Ch.  7)  RULE  IN  Shelley's  case  '  139 

ings.  If  there  was  no  context,  it  was  considered  that  the  singular  form 
was  used  collectively  to  indicate  indefinite  succession,  and  Shelley's 
Case  applied.  But  a  context  might  show  that  the  singular  form  was 
employed  to  describe  the  person  who  by  survival  would  become  the 
heir  of  A.'s  body,  and  that  such  heir  should  constitute  a  new  stock  of 
descent.  But  a  deed  to  A.  for  life  and  then  to  the  heirs  of  his  body 
contained  no  ambiguity  under  English  law.  "Heirs"  could  not  be  tak- 
en as  descriptive  of  the  one  person;  it  could  only  mean  the  indefinite 
succession  from  generation  to  generation.  Therefore,  in  a  deed  to  A. 
for  life  and  then  to  the  heirs  of  his  body,  their  heirs  and  assigns,  the 
added  words  were  ineffectual  to  obviate  the  rule  in  Shelley's  Case. 
"Heirs  of  the  body,"  being  usable  only  to  create  an  estate  in  tail,  could 
not  be  descriptive  of  coexistent  persons  who  on  the  death  of  the  donee 
for  life  could  then  answer  as  the  heirs  of  his  body,  and  whose  estate 
would  be  defined  by  the  added  words  "their  heirs  and  assigns"  as  a  re- 
mainder in  fee  simple.  The  application  of  the  rule  in  Shelley's  Case  to 
this  last  supposed  deed  (Wright  v.  Pearson,  1  Ed.  119,  Measure  v.  Gee, 
5  B.  &  Aid.  910)  is  entirely  consistent  with  the  rule  in  Archer's  Case 
where  primogeniture  prevails.  Bayley  v.  Morris,  4  Ves.  Jr.  788 ;  Ev- 
ans V.  Evans  [1892]  2  Ch.  173.  But  in  Illinois,  and  in  this  country 
generally,  where  the  surviving  children  as  tenants  m  common  stand  for 
the  survivmg  eldest  son,  "heirs"  may  have  difi^erent  meanmgs,  just  as 
under  English  law  the  smgular  torm^heir"  might  have  different  mean- 
ing?!  If  th^re~is  no  context,  "heirs"  must  be  held  to  indicate  the  iiv- 
deHnite  siiccession  by  iiilieiiLciiiCe,"~and  bhelley's  Case  applies.  But  a 
context  nrai  dLmun?tfate  that  ''heirs  '  was  a  description  of  purchasers 
whoshould  constitute  a  new  stock  of  descent.  .Etna  Life  ins.  Co.  v. 
Hoppm,  Z4y  ill.  406.  94  X.  E.  bOV,  where  Archer's  Case  was  relied  on. 
And  see,  also,  De  \'aughn  v.  Hutchinson,  165  U.  S.  566.  17  Sup.  Ct. 
461,  41  L.  Ed.  827;  De  Vaughn  v.  De  Vaughn,  3  App.  D.  C.  50;  Daniel 
V.  Whartenbv,  17  Wall.  639,  21  L.  Ed.  661 ;  Dott  v.  \\'illson,  1  Bav  (S. 
C.)  457;  Lemacks  v.  Glover,  1  Rich.  Eq.  (S.  C.)  141 ;  Mclntyre  v.'^Ic- 
Intyre,  16  S.  C.  290;  Jarvis  v.  Wyatt,  11  N.  C.  227;  Tucker  v.  Adams, 
14  Ga.  548 ;  Taylor  v.  Clearv,  29  Grat.  (Va.)  448 ;  Peer  v.  Hennion,  77 
N.  T.  Law,  693,  76  Atl.  1084,  29  L.  R.  A.  (N.  S.)  945 ;  Eanihart  v. 
Earnhart,  127  Ind.  397,  26  N.  E.  895.  22  Am.  St.  Rep.  652 ;  Wescott  v. 
Meeker,  144  Iowa,  311,  122  X.  W.  964.  29  L.  R.  A.  (X.  S.)  947;  Ar- 
cher V.  Brockschmidt,  5  Ohio  X.  P.  349;  Hamilton  v.  Wentworth,  58 
Me.  101 ;  Canedy  v.  Haskins,  54  Mass.  (13  Mete.)  389,  46  Am.  Dec. 
739;  Findlay  v.  Riddle,  3  Bin.  (Pa.)  139,  5  Am.  Dec.  355. 

Did  the  purchasers  who  were  described  as  the  "heirs  of  the  body 
of  Sarah"  take  a  vested  or  a  contingent  remainder? 

A  remainder  is  vested  when  throughout  its  existence  it  stands  ready 
to  take  effect  in  possession  whenever  and  however  the  preceding  estate 
determines.  A  remainder  is  contingent  when  it  is  limited  on  an  event 
which  may  happen  before  or  after,  or  at  the  time  of  or  after  the  termi- 
nation of  the  particular  estate.     WiUiams,  Real  Prop.  (21st  Ed.)  356- 


140  CLASSIFICATION   OF   FUTURE   INTERESTS  (Part  1 

358;  Gray.  Rule  against  Perp.  §  134;  Williams,  Real  Prop.  (21st  Ed.) 
345 ;  Gray,  Rule  against  Perpetuities,  §  101 ;  Fearne,  C.  R.  p.  3 ;  But- 
ler's Note  to  Fearne,  C.  R.  p.  9;  Challis,  Real  Prop.  (3d  Ed.)  pp.  125- 
126;  Leake,  Digest  of  Land  Law  (2d  Ed.)  p.  233;  Archer's  Case,  1  Co. 
66b;  Bayley  v.  Morris,  4  Ves.  Jr.  788;  Plunket  v.  Holmes,  1  Lev.  11 ; 
Loddington  v.  Kime,  1  Salk.  224;  Purefoy  v.  Rogers,  2  Saund.  380; 
Egerton  v.  Massey,  3  C.  B.  N.  S.  338;  Festing  v.  Allen,  12  M.  &  W. 
279;  Rhodes  v.  Whitehead,  2  Dr.  &  Sm.  532;  White  v.  Summers, 
(1908)  2  Ch.  256;  Doe  v.  Scudamore,  2  B.  &  P.  289;  Price  v.  Hall,  L. 
R.  5  Eq.  399 ;  Cunlifife  v.  Brancker,  3  Ch.  Div.  393 ;  City  of  Peoria  v. 
Darst,  101  111.  609;  Haward  v.  Peavey,  128  111.  430,  21  N.  E.  503,  15 
Am.  St.  Rep.  120;  Walton  v.  Follansbee,  131  111.  147,  23  N.  E.  332; 
Alittel  V.  Karl,  133  111.  65,  24  N.  E.  553,  8  L.  R.  A.  655;  Temple  v. 
Scott,  143  111.  290,  32  N.  E.  366;  Chapin  v.  Crow,  147  111.  219,  35  N. 
E.  536,  Z7  Am.  St.  Rep.  213;  McCampbell  v.  ^lason,  151  111.  500,  38 
N.  E.  672;  Phayer  v.  Kennedy,  169  111.  360,  48  N.  E.  828;  Madison  v. 
Larmon,  170  111.  65,  48  N.  E.  556,  62  Am.  St.  Rep.  356;  Golladay  v. 
Knock,  235  111.  412,  85  N.  E.  649,  126  Am.  St.  Rep.  224;  Bond  v. 
Moore,  236  111.  576,  86  N.  E.  386,  19  L.  R.  A.  (N.  S.)  540;  ^tna  Life 
Ins.  Co.  V.  Hoppin,  249  111.  406,  94  N.  E.  669;  Irvine  v.  Newlin,  63 
Miss.  192;  Bennett  v.  Morris,  5  Rawle  (Pa.)  9;  Stump  v.  Findlay,  2 
Rawle  (Pa.)  168,  19  Am.  Dec.  632;  Waddell  v.  Rattew,  5  Rawle  (Pa.) 
231 ;  Redfern  v.  Middleton,  Rice  (S.  C.)  459;  Craig  v.  Warner,  5  Mack- 
ey  (16  D.  C.)  460,  60  Am.  Rep.  381 ;  McElwee  v.  Wheeler,  10  S.  C. 
(Rich.)  392;  Fabsr  v.  Police,  10  S.  C.  (Rich.)  376;  Watson  v.  Dodd,  68 
X.  C.  528;  Watson  v.  Dodd,  72  N.  C.  240;  Abbott  v.  Jenkins,  10  Serg. 
&  R.  (Pa.)  296;  Taylor  v.  Taylor,  118  Iowa,  407,  92  N.  W.  71 ;  Young 
v.  Young,  89  Va.  675,  17  S.  E.  470,  23  L.  R.  A.  642;  Nichols  v.  Guth- 
rie, 109  Tenn.  535,  73  S.  W.  107 ;  Henderson  v.  Hill,  77  Tenn.  (9  Lea) 
26;  Roundtree  v.  Roundtree,  26  S.  C.  450,  471,  2  S.  E.  474;  Blanchard 
v.  Brooks,  12  Pick.  (Mass.)  47. 

The  remainder  given  to  the  "heirs  af  fhe  bndy  of  Snrah"  is  nnt  vest- 
ed, because  it  does  not  stand  ready  throughout  its  existence  to  take  ef- 
fect" in  possession  whenever  and  however  the  preceding  esl-ate  deter- 
miiiesl  It  betore  Sarah's  death  the  life  estate  should  terminate  by  for- 
f'^ifure^or  merger  or  surrender,  the  remainder  would  not  stand  ready, 
according  to  its  terms,  to  come  into  possession.  The  remainder  is  con- 
tingent because  it  is  limited  on  an  event  (the  death  of  Sarah,  when  the 
hefrs  oTlTer  body  can  be  ascertained)  which  may  not  hapnen  until  nffer 
the  termination  of  the  life  estate,  while  it  may  be  coincident  with  the 
termtrration  of  the  life  esiaig: 

There  is  no  escape  from  holding  that  the  remainder  is  contingent,  ex- 
cept by  construing  "heirs  of  the  body  of  Sarah''  as  meaning  her  chil- 
dren living  at  the  date  of  the  deed  and  those  subsequently  born,  instead 
of  denoting  such  children  and  descendants  as  should  survive  her.  But 
in  our  judgment  this  cannot  be  done.  When  it  is  found  that  Shelley's 
Case  does  not  apply,  and  that  the  words  "heirs  of  the  body"  are  de- 


Ch.  7)  RULE  IN  Shelley's  case  141 

scriptio  personarum  of  remaindermen  who  are  given  an  estate  in  fee 
simple,  the  question  whether  the  remainder,  which  is  inevitably  contin- 
gent according  to  the  legal  definition  and  the  tnaxim  that  no  one  can  be 
heir  of  the  living,  can  be  treated  as  a  vested  remainder  in  children  alive 
or  as  born,  must  be  determined  by  observing  w'hether  or  not  a  definition 
contrary  to  the  legal  one  has  been  furnished  by  the  donor.  In  Archer's 
Case  no  extra  legal  definition  was  supplied,  and  the  remainder  was  held 
to  be,  not  a  remainder  that  vested  in  Robert's  eldest  son  when  born, 
but  a  remainder  that  was  contingent  upon  a  person's  surviving  Robert 
who  could  then  answer  to  the  legal  description.  When  the  parties  to 
the  present  controversy  were  before  the  Supreme  Court  of  Illinois,  that 
tribunal,  after  finding  that  Shelley's  Case  was  inapplicable,  ruled  that: 
"There  is  no  ground  whatever  in  this  case  for  saying  that  the  words 
'heirs  of  the  body'  were  intended  to  have  any  other  than  their  ordinary 
definite  legal  meaning,  for  there  are  no  words  in  the  deed  which  in  any 
way  qualify  them." 

This  accords  with  the  general  holdings  that  in  the  absence  of  a  spe- 
cial context  there  is  nothing  to  do  but  accept  the  legal  definition.  Bay- 
ley  V.  Morris,  4  Ves.  Jr.  788;  Canedy  v.  Haskins,  54  Mass.  (13  Mete.) 
389,  46  Am.  Dec.  739;  Hamilton  v.  Wentworth,  58  Me.  101 ;  Frogmor- 
ton  V.  Wharrey,  2  Wm.  Black  Rep.  728;  :\Iudge  v.  Hammill,  21  R.  I. 
283,  43  Atl.  544,  79  Am.  St.  Rep.  802 ;  Harvey  v.  Ballard,  252  111.  57, 
96  N.  E.  558;  Thurston  v.  Thurston,  6  R.  I.  296,  300;  Mercer  v.  Safe 
Deposit  Co.,  91  Md.  102,  117,  45  Atl.  865;  Kirby  v.  Brownlee,  7  O.  C. 
D.  460,  463 ;  Hanna  v.  Hawes,  45  Iowa,  437,  440 ;  Zuver  v.  Lyons,  40 
Iowa,  513;  Crosby  v.  Davis,  2  Clark  (Pa.)  403;  Wood  v.  Burnham,  6 
Paige  (N.  Y.)  513;  Tallman  v.  Wood,  26  Wend.  (N.  Y.)  9;  Jarvis  v. 
^^'yatt,  11  N.  C.  227;  Lemacks  v.  Glover,  1  Rich.  Eq.  (S.  C.)  141; 
Tucker  v.  Adams,  14  Ga.  548;  Sharman  v.  Jackson,  30  Ga.  224;  Smith 
V.  Butcher,  L.  R.  10  Ch.  Div.  113;  Lord  v.  Comstock,-240  111.  492,  88 
N.  E.  1012;  Jones  v.  Rees,  6  Pennewill  (Del.)  504,  69  Atl.  785,  16  L.  R. 
A.  (N.  S.)  734;  Johnson  v.  Jacob,  74  Ky.  (11  Bush)  646;  Hall  v.  La 
France  Fire  Engine  Co.,  158  N.  Y.  570,  53  N.  E.  513 ;  Putnam  v.  Glea- 
son,  99  :\Iass.  454;  Richardson  v.  Wheatland,  48  Mass.  (7  Mete.)  169; 
Read  v.  Fogg.  60  Me.  479;  Williamson  v.  Williamson,  57  Ky.  (18  B. 
Mon.)  329;  Fulton  v.  Harman,  44  Md.  251,  264;  Horslev  v.  Hilburn. 
4+  Ark.  458;  In  re  Estate  of  Kelso,  69  Vt.  272,  37  Atl.  747;  In  re 
^^■elrs  Estate,  69  Vt.  388,  3S  Atl.  83;  Hall  v.  Leonard,  1  Pick.  (Mass.) 
27;  ]\Iorris  v.  Stephens,  46  Pa.  200;  Winslow  v.  Winslow,  52  Ind.  8. 

In  the  cases  cited  by  plaintifif  to  support  the  contention  that  "heirs 
of  the  body"'  snould  be  consirued  to  mean~"children  alive  or  as  born" 
there  was  either  a  special  context  or  when  the  question  of  rights  arose 
the"  "children"  were  in  fact  survivors  answering_to  the  d^scri[)tion  of 
heirs  of  the  body.  Doe  v.  Laming,  2  Burr.  1100;  Doe  v.  Graft',  11 
E^st,  66S;  Gretton  v.  Haward,  6  Taunt.  94;  Crump  v.  Norwood,  7 
Taunt.  362 ;  Right  v.  Creber,  5  B.  &  C.  866;  De  Vaughn  v.  Hutchinson, 
165  U.  S.  566,  17  Sup.  Ct.  461,  41  L.  Ed.  827. 


142  CLASSIFICATION   OF  FUTURE   INTERESTS  (Part  1 

We  therefore  conclude  that  the  Supreme  Court  of  Illinois,  when 
considering  the  deed  now  in  question,  correctly  determined  and  ap- 
plied the  Illinois  law  as  it  stood  in  1862 ;  that  is,  the  common  law  of 
England  and  the  general  acts  of  Parliament  in  aid  thereof,  prior  to 
1606,  as  modified  by  the  Illinois  statute  of  descent. 

Plaintiff,  citing  no  Illinois  cases  prior  to  1862,  insists  that  the  Illinois 
decision  between  these  parties  is  opposed  to  Butler  v.  Huestis,  68  111. 
594,  18  Am.  Rep.  589,  decided  in  1873,  and  has  been  virtually  overrul- 
ed by  Moore  v.  Reddel,  259  111.  36,  102  N.  E.  257,  decided  in  June, 
1913. 

Though  there  were  no  apposite  Illinois  decisions  before  1862,  the 
law  of  Illinois,  a^coinmon-law  siateTis  to  be  re^rded  as  settled  in  1862 
in  accordance  wiTh  the  settlM  comi-hon  law".  Hardin  v.  Jordan,  140 TJ. 
SrSTT,  11  Sup.  Ct.  8087838,  35  E.  Ed.  428.  If  this  Fassett  deed  in 
1862  conferred  upon  defendants  a  contingent  remainder  in  fee  simple 
under  the  law  then  in  force,  that  right  in  real  estate  could  not  be  im- 
paired or  destroyed  by  subsequent  legislation  or  subsequent  decision. 

Moore  v.  Reddel,  if  it  does  conflict  with  ^tna  Life  Ins.  Co.  v.  Hop- 
pin,  can  be  allowed  no  effect.  On  this  writ  the  question  is  whether  the 
trial  court  committed  error  in  looking  to  the  evidences  of  the  Illinois 
law  in  force  in  1862.  Error  cannot  be  predicated  on  the  trial  court's 
failure  to  foresee  that  the  Supreme  Court  of  Illinois  would  not  merely 
overturn  a  rule  of  property  as  declared  shortly  before  by  the  same 
judges,  but  would  undertake  to  abrogate. the  common  law — a  right  re- 
served by  chapter  28,  §  1,  exclusively  to  the  Legislature.  Morgan  v. 
Curtenius,  20  How.  1,  51  L.  Ed.  823;  Burgess  v.  Seligman,  107  U.  S. 
20,  2  Sup.  Ct.  10,  27  L.  Ed.  359;  Security  Trust  Co.  v.  Black  River 
National  Bank,  187  U.  S.  211,  23  Sup.  Ct.  52,  47  L.  Ed.  147;  Western 
Union  Tel.  Co.  v.  Poe  (C.  C.)  64  Fed.  9;  King  v.  Dundee  (C.  C.)  28 
Fed.  33. 

This  case  is  at  an  end,  but  it  may  perhaps  be  not  unfitting  to  say 
that  we  believe  plaintiff  is  mistaken  in  asserting  a  conflict  between  the 
cases  named.  In  Butler  v.  Huestis,  in  Moore  v.  Reddel,  and  in  the  ad- 
ditional case  of  Winchell  v.  Winchell,  259  111.  471,  102  N.  E.  823,  the 
foundational  finding  was  that  a  fee  tail  was  created,  on  which  section 
6  of  chapter  30  would  operate.  "As  to  limitations  controlled  by  that 
section,  the  only  use  made  of  the  rule  [in  Shelley's  Case]  is  for  the 
purpose  of  determining  whether  by  the  common  law  a  fee  tail  would 
have  been  created."  Winchell  v.  Winchell,  supra.  Construction  of 
section  6  of  chapter  30  was  within  the  province  of  the  Supreme  Court 
of  Illinois ;  and  if,  in  interpreting  the  legislative  will  in  abrogating  the 
common  law  respecting  entails,  the  court  found  that  "heirs  of  the 
body"  of  the  first  taker  was  intended  by  the  Legislature  to  mean  "chil- 
dren alive  or  as  born,"  such  statutory  construction  throws  no  light  on 
the  meaning  of  "heirs  of  the  body"  at  common  law  in  an  instrument 
where  the  rule  in  Shelley's  Case  fails  to  bring  section  6  into  play.  This 
substantially  was  stated  in  ^tna  Life  Ins.  Co.  v.  Hoppin.    The  court 


Ch.  7)  RULE  IN  Shelley's  case  143 

there  recited  the  settled  construction  of  section  6,  citing  the  cases  cited 
in  Moore  v.  Reddel,  and  then  proceeded  to  say  that :  "These  cases  are 
not  decisive  of  this  case,  which  does  not  involve  the  apphcation  of  the 
statute,  but  is  merely  a  question  of  the  construction  of  the  conveyance 
without  reference  to  any  statute." 

And  the  correctness  of  the  position  taken  in  .'Etna  Life  Ins.  Co.  v. 
Hoppin  with  respect  to  the  scope  and  meaning  of  section  6  was  recog- 
nized in  Moore  v.  Reddel.  We  perceive  no  conflict  between  the  two 
lines  of  decisions,  and  we  believe  none  was  intended. 

The  judgment  is  affirmed. ^^ 

15  In  the  following  cases,  where  the  only  superadded  words  of  limitation 
did  not  contain  the  word  "heirs."  the  rule  was  held  to  ap]Uv"^  Moore  a'.  Iled- 
dPl,  i.':.'J  111.  "30,  iOl'  N.  i'J.  257  ("assigns  forever");  Fowler  v.  Black,  180 
111.  30.'!,  26  N.  E.  596,  11  L.  R.  A.  670  ("in  fee  simple  by  his  [the  life  ten- 
ant's] heirs  and  tlieir  assigns  forever") ;  Winter  v.  Dibble,  251  111.  200.  95 
N.  E.  1093  ("in  fee  simple  absolnte")  ;  Clark  v.  Neves,  76  S.  G.  484,  57  a 
E.  614,  12  L.  R.  A.  (N.  S.)  298 ;  Chamberlain  v.  Runkle.  28  lud.  App.  599,  63 
N.  E.  486 ;   Teal  v.  Richardson,  100  Ind.  119,  66  N.  E.  435. 

But  see  the  following  cases  where  the  suneradded  words  of  limitation  did 
not  contain  tne  word  ••heirs"  but  only  such  exin-essioiis  as  "in  fee  simnle."  or 
"ah^igns  rnrever."  and  where  tne  rule  wp«  hAJTjn^it  tn  ^ppu-  Wescott  v. 
:\I^'ker,  144  l6wA.  311,122  N.  wr9C4r29  L.  R.  A.  (N.  S.)  947;  Archer  v. 
Brockschmidt,  5  Ohio  N.  P.  349 ;    Tucker  v.  Adams,  14  Ga.  548. 

Note  on  the  Appi.icatiox  of  the  Rule  in  Shelley's  Case  to  Tersonal 
Property. — The  rule  in  Shelley's  Case  does  not  apply  to  limitations  of  per- 
sonal  property!  W  here,  therefore,  personal  proi>erty  is  limited  to  A.  lor~TiTe 
ana  men  to  A.'s  heirs,  A.  takes  a  life  estate  only,  with  a  contingent  future 
inTer(M-tu  the  pei'tjQhs  described:  Smith  v.  Butcher.  L.  R.  10  Ch.  Div.  113; 
In  ie  Russell,  52  L.  T.  R.  559 ;  Lord  v.  Comstock,  240  111.  492,  SS  N.  E.  1012 ; 
Gross  v.  Sheeler,  7  Iloust.  (Del.)  2t>0,  31  Atl.  812 ;  Jones  v.  Rees,  6  Pennewill 
(Del.)  504,  09  Atl.  785.  16  L.  R.  A.  (N.  S.)  734.  See,  also,  SicelofC  v.  Redman's 
Adm.,  26  Ind.  251,  262. 

But  where  personal  property  is  limited  to  A.  for  life  and  then  to  the  heirs 
of  a7s  body,  it  is  seFFlod  by  the  Eir-^lisli  cases  (Theobald  ou~\Vills  [r.th  EdJ 
p.-64^and  iu  rmrrry  American  .lunsdictious.  that  -^  takes  an  aljsohite  inter- 
est.- Dott  V.  Cunnington,  1  Bay  (S.  C.)  4.53.  1  Am.  Dec.  624 ;  Polk  v.  Paris.  9 
Terg.  (Tenn.)  209,  30  Am.  Dec.  400;  Pressgrove  v.  Comfort,  58  Miss.  644; 
Hampton  v.  Rather,  30  Miss.  193 ;  Powell  v.  Brandon,  24  Miss.  343 ;  Smith  v. 
iNIeCormick,  46  Ind.  135;  AYatts  v.  Clardy,  2  Fla.  369;  Mason  v.  Pate's  Ex'r, 
34  Ala.  379;  Machen  v.  JIachen,  15  Ala.  373.  See,  also,  Knox  v.  Barker,  8 
N.  D.  272,  78  N.  W.  352 ;  Home  v.  Lyeth,  4  Har.  &  J.  (Md.)  431.  This  must 
rest  upon  the  conclusion  that  a  prima  facie  guide  to  construction  has  been 
tixed  by  the  authorities  that  an  absolute  interest  was  intended  to  be  created. 
Of  course,  at  this  day,  such  a  prima  facie  rule  is  artificial  and  contrary  to 
the  fact.  Hence  it  may  be  expected  to  yield  readily  to  a  context  which  femTs 
t(7  show  that  a  life  interest,  only  -n-.qs  infoiidpfl  (^pp>  Gray  Rule  against  Per- 
petuities [2d  Ed.]  §  647,  n.  3;  Bucklin  v.  Creighton.  18  R.  I.  325,  27  Atl.  221; 
Evans  v.  Weatherhead,  24  R.  I.  502.  53  Atl.  806 ;  DuU's  Estate,  137  Pa.  112, 
201  Atl.  418  ;  Bennett  v.  Bennett,  217  111.  434,  75  N.  E.  339,  4  L.  R.  A.  [N.  S.] 
470,  semble),  or  to  be  abandoned  entirely.  (Crawford  v.  Wearn,  115  N.  C.  540, 
20  S.  E.  724 ;    Clemens  v.  Heckscher,  185Pa.  476,  40  Atl.  80). 


144  CLASSIFICATION   OF  FUTURE   INTERESTS  (Part   1 


PROPOSED  LEGISLATION 

Where  any  grant  or  devise  hereafter  taking  effect  of  any  property 
shall  limit  an  estate  for  life  or  of  freehold  to  any  person  and  an  estate 
in  remainder  to  the  heirs  (or  the  heirs  of  any  particular  description)  of 
such  person,  such  person  shall  not  be  deemed  to  take  an  estate  of  inher- 
itance, and  the  persons  who,  upon  the  taking  effect  of  such  remainder 
in  possession,  shall  be  the  heirs  (or  the  heirs  of  the  class  described  as 
the  same  may  be)  of  such  person,  shall  take  by  virtue  of  the  remainder 
so  limited  to  them :  it  being  the  intent  of  this  provision  to  abrogate  the 
rule  of  law  commonly  known  as  the  rule  in  Shelley's  Case.^* 

16  Prepared  by  Professor  Ernst  Freuiid  and  embodied  in  the  draft  of  a  bill 
presented  to  the  Illinois  Legislature  at  its  sessions  in  1907  and  1909.  See, 
also,  1  111.  Law  Rev.  374^376, 


Ch.  8)  FUTUUE    INTERESTS   IN  PERSONAL   PROPERTY  145 

CHAPTER  VIII 
FUTURE  INTERESTS  IN  PERSONAL  PROPERTY 


SECTION  1.— CHATTELS  REAL 


MANNING'S  CASE. 

(Court  of  Common  Pleas,  1609.     8  Coke,  94b.) 

In  debt  for  200  marks  by  William  Clark  plaintiff,  and  Matthew  Man- 
ning administrator  of  Edward  Manning  deceased,  upon  plene  adminis- 
travit  pleaded,  the  jury  gave  a  special  verdict  to  the  effect  following, 
which  plea  began  Mich.  4  Jacobi  Rot.  1829.  Edward  Manning  the  in- 
testate, anno  30  Eliz.,  was  possessed  of  the  moiety  of  a  mill  in  Clifton 
in  the  county  of  Oxford,  for  the  term  of  fifty  years,  of  the  clear  yearly 
value  of  £40,  and  afterwards  the  said  Edward  Manning,  30  Eliz.,  made 
his  will  in  writing,  and  thereby  devised  his  indenture  and  lease  of  the 
farm  and  mill  in  Clifton,  and  all  the  years  therein  to  come  to  Matthew 
Manning  after  the  death  of  Mary  Manning  my  wife  (which  farm  and 
mill  my  will  is,  that  Mary  Manning  my  wife  shall  enjoy  during  her 
life)  conditionally,  that  the  said  Matthew  shall  not  demise,  sell,  or  give 
the  said  lease,  but  to  leave  it  wholly  to  John  his  son,  &c.  "In  the  mean 
time  my  will  and  meaning  is,  that  Mary  Manning  my  wife  shall  have 
the  use  and  occupation  both  of  the  farm  and  mill,  &c.  during  her  natu- 
ral life :  yielding  and  paying  therefore  yearly  to  the  said  Matthew 
Manning,  &c.  during  her  natural  life  il  at  the  feasts  of  St.  Michael 
the  Archangel,  and  the  Annunciation  of  our  Lady,"  and  made  Mary 
his  wife  sole  executrix,  and  died ;  Mary  took  upon  her  the  charge  of 
the  will,  and  had  not  sufficient  to  pay  the  debts  of  the  said  Edward 
Manning  above  the  said  term  ;  but  she  entered  into  the  said  farm  and 
mill,  and  paid  to  Matthew  Manning  the  yearly  sum  of  17  according  to 
the  said  will ;  and  said,  that  if  she  died,  the  said  Matthew  Manning 
should  have  the  farm  and  mill  aforesaid ;  and  afterwards  the  said 
Mary,  sixteen  years  after  the  death  of  her  husband,  died  intestate, 
after  whose  death  the  said  Matthew  Manning  entered  into  the  said 
farm  and  mill,  and  was  thereof  possessed  prout  lex  postulat ;  and  after- 
wards administration  of  the  goods  of  the  said  Edward  by  the  said 
Mary  not  administered  was  committed  to  the  said  Matthew,  and  that 
none  of  the  profiits  of  the  said  farm  and  mill,  which  accrued  in  the  life 
of  the  said  Mary  came  to  the  hands  of  the  said  Matthew  besides  the 
said  17  yearly  as  aforesaid.  And  the  doubt  of  the  jury  was,  if  the  resi- 
4  Kales  Pbop. — 10 


14G  CLASSIFICATION  OF  FUTURE  INTERESTS  (Part  1 

due  of  the  said  term  in  the  said  farm  and  mill  should  be  assets  in  the 
hands  of  the  said  Matthew.  But  I  conceived  on  the  trial  of  the  issue 
at  Guildhall  in  London,  that  the  devise  to  Matthew  was  good,  and  that 
there  wa^^  sufficient  assent  to  the  legacy,  by  the  said  payment  of  the 
rent  of  "ig/.  But  yet  upon  the  motion  of  the  plaintiff's  counsel,  I  was 
contented  that  the  whole  special  matter  should  be  found  as  is  afore- 
said. And  the  case  was  argued  at  the  bar,  and  at  divers  several  days 
debated  at  the  bench,  and  prima  facie  Walmsley,  Justice,  conceived, 
that  the  devise  toi  Matthew  Manning  after  the  death  of  the  wife  was 
void,  for  the  wife  having  it  devised  to  her  during  her  life,  she  had  the 
whole  term,  and  the  devisor  could  not  devise  the  possibility  over  no 
more  than  a  man  can  do  b}'  grant  in  his  life ;  for  that  which  the  testa- 
tor cannot  by  no  advice  of  counsel  in  his  life,  the  testator,  who  is  in- 
tended to  be  inops  consilii,  shall  not  do  by  his  will ;  but  by  grant  in  his 
life  he  could  not  grant  the  land  unto  the  wife  for  her  life,  the  remain- 
der over  to  another,  for  by  the  grant  the  wife  had  the  whole  term  at 
least  if  she  so  long  lived,  and  a  possibility  cannot  be  limited  by  way  of 
remainder;  and  although  the  later  opinions  in  the  case  (where  a  man 
possessed  of  a  lease  for  years  devises  it  to  one  for  life,  the  remainder 
to  another)  have  been  that  the  remainder  was  good,  yet  he  said  that  the 
old  opinion,  which  hath  more  reason,  as  he  conceived,  was,  that  the 
remainder  in  such  case  was  void,  28  H.  7,  7  Dyer,  Baldwin  and  Shel- 
ley, that  the  remainder  is  void,  Englefield  contrary,  6  E.  6,  74,  ace.  by 
Hales  and  Montague,  2  E.  6,  tit.  Dc'vise,  Brook,  13,  that  the  remainder 
is  void,  for  the  devise  of  a  chattel  for  one  hour  is  good  forever.  But 
Coke,  Chief  Justice,  Warburton,  Daniel,  and  Foster  contrary,  that 
the  devise  was  good  to  Matthew  Manning;  and  five  points  were  by 
them  resolved:  1.  That  Matthew  Manning  took  it  not  by  way  of  re- 
mainder, but  by  way  of  an  executory  devise,  and  one  may  devise  an 
estate  by  his  last  will  in  such  manner  as  he  cannot  do  .by  any  grant  or 
conveyance  in  his  life,  as  if  a  man  is  seised  of  lands  in  fee  held  in 
socage,  and  devises  that  if  A.  pays  such  a  sum  to  his  executors,  that  he 
shall  have  the  land  to  him  and  his  heirs,  or  in  tail,  or  for  life,  &:c.  and 
dies,  and  afterwards  A.  pays  the  money,  he  shall  have  the  land  by  this 
executory  devise,  and  yet  he  could  riot  have  it  by  any  grant  or  convey- 
ance executory  at  the  common  law  ;  but  it  stands  well  with  the  nature  of 
a  devise ;  so  in  the  case  at  bar  when  the  wife  dies  it  shall  vest  in  Matthew 
Manning  as  by  an  executory  devise,  as  if  he  had  devised  that  after  a 
son  has  paid  such  a  sum  to  his  executors,  that  he  shall  have  his  term ; 
or  that  after  the  death  of  A.  that  B.  shall  have  the  term ;  or,  that  after 
his  son  shall  return  from  beyond  the  seas,  or  that  A.  dies,  that  he  shall 
have  it,  in  all  these  cases  and  other  like,  upon  the  condition  or  contin- 
gent performed,  the  devise  is  good,  and  in  the  mean  time  the  testator 
may  dispose  of  it;  and  therefore  in  judgment  of  law,  ut  res  magis 
valeat,  the  executory  devise  shall  precede,  and  the  disposition  of  the 
lease,  till  the  contingent  happen,  shall  be  subsequent,  as  in  the  case  at 
bar  it  was,  and  so  all  shall  well  stand  together ;  for  when  he  made  the 


Ch.  8)  FUTURE    INTERESTS   IN  PERSONAL   PROPERTY  147 

executory  devise,  he  had  a  lawful  power,  and  might  well  make  it:  and 
afterwards  in  the  same  will  he  had  lawful  power,  and  might  well  devise 
the  lease  till  the  contingent  happened,  and  therefore  it  is  as  much  as  if 
the  testator  had  devised,  that  if  his  wife  died  within  the  term,  that  then 
Matthew  Manning  should  have  the  residue  of  the  term ;  and  farther 
devised  it  to  his  wife  for  her  life.  2.  The  case  is  more  strong,  because 
this  devise  is  but  of  a  chattel,  whereof  no  praecipe  lies ;  and  which  may 
vest  and  revest  at  the  pleasure  of  the  devisor,  without  any  prejudice  to 
any.  And  therefore  if  a  man  makes  a  lease  for  years,  on  condition 
that  if  he  do  not  such  a  thing,  the  lease  shall  be  void,  and  afterwards 
he  grants  the  reversion  over,  the  condition  is  broken,  the  grantee  shall 
take  benefit  of  this  condition  by  the  common  law,  for  the  lease  is  there- 
by absolutely  void  :  but  in  such  case  if  the  lease  had  been  for  life,  with 
such  condition,  the  grantee  should  not  take  the  benefit  of  the  breach  of 
the  condition ;  for  a  freehold  (of  which  a  praecipe  lies)  cannot  so  easily 
cease ;  but  is  voidable  by  entry  after  the  condition  broken,  which  cannot 
by  the  common  law  be  transferred  to  a  stranger;  and  therewith  agrees 
11  H.  7,  17a,  and  Br.  Conditions,  245,  2  Mariae,  by  Bromley  the  same 
difference.  3.  There  is  no  difference  when  one  devises  his  term  for 
life,  the  remainder  over ;  and  when  a  man  devises  the  land,  or  his  lease, 
or  farm,  or  the  use  or  occupation,  or  profits  oi  his  land ;  for  in  a  will 
the  intent  and  meaning  of  the  devisor  is  to  be  observed,  and  the  law 
will  make  construction  of  the  words  to  satisfy  his  intent,  and  to  put 
them  into  such  order  and  course  that  his  will  shall  take  eff'ect.  And  al- 
ways the  intention  of  the  devisor  expressed  in  his  will  is  the  best  ex- 
positor, director,  and  disposer,  of  his  words ;  and  when  a  man  devises 
his  lease  to  one  for  life,  it  is  as  much  as  to  say,  he  shall  have  so  many 
of  the  years  as  he  shall  live,  and  that  if  he  dies  within  the  term  that 
another  shall  have  it  for  the  residue  of  the  years ;  and  although  at  the 
beginning  it  be  uncertain  how  many  years  he  shall  live,  yet  when  he 
dies  it  is  certain  how  many  years  he  has  lived,  and  how  many  years  the 
other  shall  have  it,  and  so  by  a  subsequent  act  all  is  made  certain.  4. 
That  after  the  executor  has  assented  to  the  first  devise,  it  lies  not  in 
the  power  of  the  first  devisee  to  bar  him  who  has  the  future  devise, 
for  he  cannot  transfer  more  to  another  than  he  has  himself.  5.  In 
many  cases  a  man  by  his  will  may  create  an  interest,  which  by  grant  or 
conveyance  at  the  common  law  he  cannot  create  in  his  life;  and  there- 
fore when  Sir  William  Cordell,  Master  of  the  Rolls,  devised  his  man- 
or of  Melford,  &c.,  in  the  county  of  Suffolk,  to  his  executors  for  the 
payment  of  his  debts,  and  until  his  debts  should  be  paid,  the  remainder 
to  Edward  his  brother,  &c.,  and  made  George  Carey  and  others  his  ex- 
ecutors, and  died,  and  after  his  death  the  debts  w'ere  paid ;  and  his  wife 
demanded  dower,  and  one  question  amongst  others  was  moved,  what 
interest  or  estate  the  executors  had?  for  if  they  had  a  freehold,  then 
the  wife  should  not  have  dower  and  if  they  had  but  a  chattel  determina- 
ble upon  the  payment  of  the  debts,  then  she  should  be  endowed ;  and 
this  case  was  referred  to   Anderson.   Chief   Justice  of  the  Common 


1-18  CLASSIFICATION   OF   FUTURE   INTERESTS  (Part  1 

Pleas,  and  Francis  Gawdie,  Justice  of  the  King's  Bench,  before  whom 
the  case  was  at  several  days  debated,  Pasch.  36  Eliz.,  and  I  was  of 
counsel  with  the  executors ;  and  it  was  resolved  by  them  that  the  execu- 
tors had  but  a  chattel,  and  no  freehold ;  for  if  they  should  have  a  free- 
hold for  their  lives,  then  their  estat-^  would  determine  by  their  death, 
and  not  go  to  the  executors  of  the  executors,  and  so  the  debts  would 
remain  unpaid ;  but  the  law  adjudges  it  a  particular  interest  in  the  land, 
which  shall  go  to  the  executors  of  the  executors,  as  assets  for  payment 
of  his  debts.  But  if  such  estate  be  made  by  grant,  or'  conveyance  at 
the  common  law.  the  law  will  adjudge  it  an  estate  of  freehold,  and  so  a 
more  favorable  interpretation  is  made  of  a  will  in  point  of  interest  or 
estate  to  satisfy  the  will  of  the  dead  for  the  payment  of  his  debts,  than 
of  a  grant  or  conveyance  in  his  life ;  which  he  may  enlarge,  or  make 
other  provision  at  his  pleasure.  And  so  was  it  resolved  in  the  begin- 
ning of  the  reign  of  Queen  Elizabeth  that  where  a  man  had  issue  a 
daughter,  and  devised  his  lands  to  his  executors  for  the  payment  of 
his  debts,  and  until  his  debts  were  paid,  and  made  his  executors  and 
died,  the  executors  entered,  the  daughter  married,  and  had  issue  and 
died,  and  after  the  debts  were  paid,  it  was  resolved  in  the  case  of  one 
Guavarra  that  he  should  be  tenant  by  the  curtesy.  Vide  3  H.  7,  13. 
27  H.  8,  5.    21  Ass.  p.  8.    14  H..  8,  13.  . 

Note,  reader,  it  has  been  of  late  often  adjudged  according  tO'  these 
resolutions,  sc,  in  Weldon's  Case,  2  Brownl.  309,  Plowd.  Com.,  in 
Communi  Banco.  In  Paramour's  Case,  2  Brownl.  309,  Plowd.  Com., 
in  the  King's  Bench,  Mich.  26  and  27  EHz.  in  a  writ  of  error  in  the 
King's  Bench,  on  a  judgment  given  in  the  Common  Pleas,  the  case  was 
such:  Thomas  Amner  brought  an  ejectione  firmse  against  Nicholas 
Loddington  on  a  demise  made  by  Alice  Fulleshurst  for  seven  years  of 
certain  houses  in  London,  and  on  not  guilty  pleaded,  the  jury  gave  a 
special  verdict.  Hugh  Weldon  was  seised  of  the  said  houses  in  fee, 
and  24  H.  8,  demised  them  to  Thomas  Pierpoint  for  ninety-nine 
years,  who  by  his  will  in  writing  1544,  devised  his  said  lease  in  these 
words :  "T  devise  my  lease  to  my  wife  during  her  life,  and  after  her 
death  I  will  it  go  to  her  children  unpreferred,"  and  made  his  wife  his 
executrix,  and  died.  His  wife  entered  and  was  possessed  ratione  boni 
et  legationis,  and  married  with  Sir  Thomas  Fulleshurst,  and  afterwards 
2  and  3  Phil,  and  Mar.,  Bestwick  recovered  against  Sir  Thomas  f  140 
debt  in  the  Common  Pleas,  and  by  force  of  a  fieri  facias  directed  to 
Altham  and  Mallory,  sheriffs  of  London,  the  said  term  was  sold  to 
Nicholas  Loddington,  the  now  defendant,  and  afterwards  the  judgment 
against  the  said  Sir  Thomas  Fulleshurst  was  reversed  in  a  writ  of  er- 
ror in  the  King's  Bench,  et  quod  ad  omnia  quae  amisitratione  judici- 
prjed,  restituatur,  and  afterwards  Alice  the  wife  and  executrix  died. 
Alice  Fulleshurst  being  then  the  only  daughter  who  was  unpreferred, 
entered  and  made  the  lease  to  the  plaintiff  Thomas  Amner.  And  this 
case  was  often  argued  at  bar  by  the  serjcants  in  the  Common  Pleas, 
and  at  last  by  the  judges;  and  in  this  case  three  points  by  them  were 


Ch.  8)        FUTURE  INTERESTS  IN  TEKSONAL  PROPERTY  141) 

resolved:  1.  That  the  said  executory  devise  of  the  lease  after  the 
death  of  the  wife  to  the  daughter  unpreferred,  was  good ;  and  there  is 
no  difference  when  the  term,  or  lease,  or  houses,  and  when  the  use  or 
occupation,  &c.,  is  devised,  and  that  in  all  these  cases  the  executory  de- 
vise is  good.  2.  That  the  sale  either  by  Alice  the  wife,  or  by  the  sheriff 
on  the  fieri  facias,  after  the  wife  was  possessed  as  legatee,  should  not 
destroy  the  executory  devise,  although  the  person  to  whom  the  execu- 
tory devise  was  made  was  then  uncertain,  as  long  as  Alice  the  wife 
lived ;  for  the  said  Alice  the  daughter  might  have  been  preferred  in 
her  life,  and  then  she  should  take  nothing,  so  that  such  executory  de- 
vise which  has  dependence  on  the  first  devise  may  be  made  to  a  person 
uncertain,  and  this  possibility  cannot  be  defeated  by  any  sale  made  by 
the  first  devisee,  &c.  3.  That  the  sale  by  the  sheriff  by  force  of  the 
fieri  facias  should  stand,  although  the  judgment  was  after  reversed, 
and  the  plaintiff  in  the  writ  of  error  restored  to  the  value,  for  the  sher- 
iff who  made  the  sale,  had  lawful  authority  to  sell,  and  by  the  sale  the 
vendee  had  an  absolute  property  in  the  term  during  the  life  of  Alice  the 
wife  ;  and  although  the  judgment,  which  was  the  warrant  of  the  fieri 
facias,  be  afterwards  reversed,  yet  the  sale,  which  was  a  collateral  act 
done  by  the  sheriff,  by  force  of  the  fieri  facias,  shall  not  be  avoided  ; 
for  the  judgment  was  that  the  plaintiff  should  recover  his  debt,  and  the 
fieri  facias  is  to  levy  it  of  the  defendant's  goods  and  chattels,  by  force 
of  which  the  sheriff'  sold  the  term  which  the  defendant  had  in  the  right 
of  his  wife,  as  he  well  might,  and  the  vendee  paid  money  to  the  value 
of  it.  And  if  the  sale  of  the  term  should  be  avoided,  the  vendee  would 
lose  his  term,  and  his  money  too,  and  thereupon  great  inconvenience 
would  follow  that  none  would  buy  of  the  sheriff  goods  or  chattels  in 
such  cases,  and  so  execution  of  judgments  (which  is  the  life  of  the 
law  in  such  case)  would  not  be  done.  And  according  to  these  resolu- 
tions judgment  was  given  in  the  Common  Pleas  for  the  plaintiff,  and 
in  the  King's  Bench  upon  a  w^rit  of  error  the  case  was  often  argued  at 
the  bar  before  Sir  Christopher  Wray,  and  the  court  there,  and  at  length 
the  judgment  was  affirmed,  and  so  the  said  three  points  were  adjudged 
by  both  courts:  and  by  these  latter  judgments  you  will  better  under- 
stand the  law  in  the  books,  in  which  there  are  variety  of  opinions.  2)7 
H.  6,  30.  ZZ  H.  8.  Br.  tit.  Chattels  ZZ.  2  E.  6,  tit.  Devise,  Br.  13.  28 
H.  8.  Dyer  277.  Plow.  Com.  in  Weldon's  and  Paramour's  Case,  ^c. 
Quia  judicia  posteriora  sunt  in  lege  fortiora.^ 

1  LfMiipet's  Case,  10  Co.  46  b  (1612),  accord.     See  Gray,  Perpetuities,  §§  148- 
152. 


150  CLASSIFICATION   OP   FUTURE   INTERESTS  (Part  1 

CHILD  V.  BAYLIE. 
(Courts  of  King's  Bench  and  Exchequer  Chamber,  1618.     Cro.  Jac.  459.) 

Ejectment  of  a  lease  of  Thomas  Heath  of  lands  in  Alchurch. 

Upon  Not  guilty  pleaded,  a  special  verdict  was  found  upon  the  case ;. 
which  was,  that  William  Heath,  possessed  of  a  lease  for  seventy-six 
years  of  the  land  in  question,  let  it  to  one  Blunt  from  the  day  of  his 
death  until  the  first  of  May,  1629  (which  was  three  months  before  the 
end  of  the  lease),  if  Dorothy  his  wife  lived  so  long.  Afterwards  he  de- 
vised, that  William  Heath  his  son  and  his  assigns  should  have  the  said 
tenements,  and  the  reversion  of  them,  and  all  his  title  and  interest  in 
the  said  tenements,  for  all  the  others  of  the  said  seventy-six  years 
which  should  be  unexpired  at  the  time  of  his  wife's  death,  "provided, 
that  if  the  said  William  die  without  issue  living  at  the  time  of  his  death, 
that  Thomas  his  son  (the  now  lessor)  should  have  it  for  all  the  residue 
of  the  seventy-six  years  unexpired  from  the  death  of  his  said  wife, 
and  of  William  without  issue;  and  if  he  died  without  issue,  then_lo.his 
daughters ;"  and  made  his  wife  his  executrix,  and  died.  The  Avif e  as- 
sented to  the  legacies ;  William  assigned  all  this  lease  and  his  interest 
thereto  to  the  said  Dorothy,  who  assigned  it  to  Mr.  Comb,  under  whom 
the  defendant-  claims :  afterwards  Dorothy  died,  and  then  William 
died  without  issue.  Thomas  the  devisee  enters,  and  makes  this  lease  to 
the  plaintiff. 

After  divers  arguments  at  the  bar,  it  was  adjudged  for  the  defend- 
ant. 

First,  it  was  resolved,  where  a  lessee  for  years  let  it  after  his  death 
until  the  first  of  May,  1629.  that  it  was  a  good  lease,  which  began  im- 
mediately by  his  death,  he  dying  within  that  time. 

Secondly,  that  the  lease  being  made  to  begin  after  his  death  unto  the 
first  of  May,  1629,  the  lease  being  made  (12  August,  1553),  if  Dorothy 
his  wife  should  so  long  live,  he  did  not  thereby  convey  the  interest  and 
remainder  of  the  term,  viz.  from  the  first  of  May,  1629,  to  12  August, 
1629,  and  the  possibility  of  a  long  term  if  Dorothy  died  before  the  first 
of  May,  1629,  which  interest  and  possibility  together  he  might  devise  to 
William  Heath  his  son. 

Hie  third  and  main  question  was,  whether  this  devise  being  to  Wil- 
liam Heath  and  his  assigns,  with  a  proviso,  that  if  he  died  without  is- 
sue living,  that  Thomas  Heath  should  have  it,  and  he  aliens  it,  and 
afterwards  dies  without  issue,  whether  this  alienation  shall  bind  Thom- 
as Heath,  or  that  he  may  avoid  it  ? 

It  was  resolved,  that  this  alienation  shall  bind ;  for  when  he  limited 
to  him  and  his  assigns,  all  the  estate  was  vested  in  him,  and  he  had  an 
absolute  power  to  dispose  thereof ;  for  the  law  doth  not  expect  his  dy- 
ing without  issue.  The  difference  therefore  is,  where  a  lease  is  devised 
to  one  if  he  live  so  long,  and  afterward  to  another,  the  first  hath  but  a 
qualified  estate,  and  the  other  hath  the  absolute  interest,  and  therefore 


Ch.  8)  FUTURE    INTERESTS   IX   PERSONAL   PROPERTY  151 

this  alienation  shall  not  prejudice  him  who  hath  the  absolute  estate ; 
but  when  it  is  limited  to  him  and  his  assigns,  then  the  proviso  thereto 
added,  is  void  to  restrain  the  alienation :  and  the  limitation  to  the  heirs 
oTthe  body,  and  the  proviso,  are  all  one;  foFall  long  leases  would  be 
more  dangerous  than  perpetuities :  and  therefore  this  case  differs 
from  the  cases  in  8  Co.  96,  and  10  Co.  46,  Lampet's  Case,  that  a  devisee 
for  life  could  not  bar  him  in  remainder :  and  Lewknor's  Case,  Easter 
Term,  14  Jac.  1 ;  1  Roll.  Rep.  356,  in  the  Exchequer  Chamber,  was 
cited.    Wherefore  it  was  adjudged  for  the  defendant. 

Note. — Upon  this  judgment  a  writ  of  error  was  brought  in  the  Ex- 
chequer Chamber ;  and  the  error  assigned  in  point  of  law,  that  the  re- 
mainder of  this  term  limited  to  Thomas  Heath  after  the  death  of  Wil- 
liam without  issue  then  living,  was  good,  and  the  alienation  of  William 
shall  not  bind  him  in  remainder. 

It  was  argued  by  Bridgman,  and  afterward  by  Humphrey  Davenport, 
for  the  plaintiff  in  error,  that  it  \vas  a  good  limitation  of  the  remainder 
of  the  term  to  William  and  his  assigns,  with  the  proviso,  that  if  he 
died  without  issue  then  living,  the  then  remainder  should  be  to  Thomas, 
&c.,  and  that  it  is  no  more  in  effect  than  after  his  death;  and  therefore 
it  differs  from  Lewknor's  Case,  adjudged  in  the  Exchequer,  where  a 
devise  of  a  term  to  one,  and  the  heirs  of  his  body,  and  if  he  die  with- 
out issue,  that  it  shall  remain  to  another,  was  held  to  be  a  void  remain- 
der; for  he  cannot  limit  a  remainder  upon  a  term  after  the  death  of 
another  without  issue :  but  here  it  is  but  a  remainder  after  the  death 
of  one  without  issue,  viz.  William  dying  without  issue  then  living;  so 
upon  the  matter  it  depended  upon  is  death,  and  therefore  not  like  to  the 
said  case ;  but  it  is  agreeable  to  the  reasons  put  in  the  cases  of  8  Co.  94, 
Matth.  Manning's  Case,  and  10  Co.  46.- 

But  it  was  now  argued  on  the  other  part  by  Thomas  Crew  and 
George  Croke,  that  the  judgment  was  well  given  in  the  King's  Bench ; 
for'irere  the  limitation  being  to  William  after  the  death  of  tlie  devisor's 
wife,  of  all  his  estate  and  interest  to  him  and  his  assigns,  it  is  but  a  re- 
mainder; for  the  wife  may  outlive  all  the  term,  and  then  this  devise  of 
the  remainder  of  the  term  is  given  to  him  in  particular,  and  XVilliam 
hath  but  a  possibility ;  and  then  to  limit  it  to  Thomas  after  the  death  of 
\\'illiam  then  living,  is  to  limit  a  possibility  upon  a  possibility,  which  is 
against  the  rules  of  law,  as  it  is  held  in  the  Rector  of  ChedingtonVCase, 
1  Co.  156,  and  Lord  Stafford's  Case,  8  Co.  7Z. 

2  Palmer  reports  Serjeant  Davenport  as  saying:  "There  is  no  danger  of 
perpetuity  by  sucti  a  conveyance.  For  ho  tookji  diversity  when  the  contingen- 
cy is  such  as  can  or  ought  [doetl  to  hapi>eii  in  the  life  of  the  devisee.  There 
a  feinamder  limited  on  such  an  estate  in  case  of  a  devise  of  a  chattel  is  good, 
as  in  our  case,  if  he  should  die  without  issue  of  his  body  living  at  the  time  of 
his  death,  so  that  it  does  not  exceed  his  life.  But  if  the  contingency  be  such 
as  is  foreign  [forrain],  or  is  to  connnence  in  futuro  after  the  death  of  the 
first  devisee,  there,  because  such  a  limitation  tends  to  make  a  perpetuity,  a 
remainder  limited  on  it  is  bad,  as  if  he  should  die  without  issue  or  without 
heir,  that  then  it  shall  remain  over.  And  on  this  diversity  they  strongly 
[fortement]  rely."     Child  v.  Baylie,  Palm.  333,  334. 


152  CLASSIFICATION   OF   FUTURE   INTERESTS  (Part   1 

Secondly,  that  this  hmitation  to  Thomas  after  the  death  of  WiUiam 
without  issue  then  hvipg,  is  all  one  as  if  it  had  been  limited  upon  his 
death  Avithout  issue :  and  the  addition  "then  living,"  doth  not  alter  the 
case^  for  at  the  first  limitation,  non  constat  that  he  should  die  without 
issue;  and  the  law  shall  not  expect  his  death  without  issue;  and  it  is 
not  like  to  the  case  when  it  is  limited  after  the  death  of  one ;  for  it  is 
certain  that  one  must  die,  and  it  may  be  that  he  may  die  during  the 
term,  and  the  law  may  well  expect  it ;  but  that  one  should  die  without 
issue,  the  law  will  never  expect  such  a  possibility,  nor  regard  it :  and 
it  would  be  very  dangerous  to  have  a  perpetuity  of  a  term  inJhaJt  man- 
neFflor  it  would  be  more  mischievous  than  the  common  cases  of  per- 
petuities which  the  law  hath  sought  to  suppress :  and  therefore  it  was 
said,  that  this  case  was  like  to  some  of  the  cases  which  had  been  ad- 
judged, that  the  remainder  of  a  term  after  the  death  of  one  person 
is  good,  and  should  not  be  destroyed  by  the  alienation  of  the  first  devi- 
see. Vide  8  Co.  94,  Manning's  Case.  10  Co.,  Lampet's  Case.  Plowd. 
520  and  540;  Dyer  74,  277. 

After  divers  arguments,  all  the  judges  of  the  Common  Pleas,  viz. 
HoBART,  Winch,  Hutton,  and  Jones,  and  all  the  Barons  (except 
Tanfiei,d,  Chief  Baron)  agreed  with  the  first  judgment :  for  they  said, 
that  the. first  grant  or  devise  of  a  term  made  to  one  for  life,  remainder  to 
another,  hath  been  much  controverted,  whether  such  a  remainder  might 
be  good,  and  whether  all  may  not  be  destroyed  by  the  alienation  of  the 
first  party ;  and  if  it  were  now  first  disputed,  it  would  be  hard  to  maiii:: 
tain;  but  being  so  often  adjudged,  they  would  not  now  dispute  it. — 
But  for  the  case  in  question,  where  there  was  a  devise  to  one  and  his 
assigns,  and  if  he  died  without  issue' then  living,  that  it  would  remain 
to  another,  it  is  a  void  devise;  and  it  is  all  one  as  the  devise  of  a  term 
to  one  and  his  heirs  of  his  body,  and  if  he  die  without  issue,  that  then 
it  shall  remain  to  another,  it  is  merely  void ;  for  such  an  entail  of  a 
term  is  not  allowable  in  law,  f^r  the  mischief  which  otherwise  would 
ensue,  li  there  should  be  such  a  perpetuity  of  a  term. — And  altlToiigh 


TanJi'eTcfTt^KierBaron,  doubted  thereof,  especially  by  reason  of  a  judg- 
ment given  before  in  the  King's  Bench  in  Rethorick  v.  Chappel,  Hil.  9 
Jac.  1;  2  Bulst.  28;  Godol.  149,  where  "William  Gary  possessed  of  a 
term  for  years  devised  it  to  his  wife  for  her  life,  and  afterwards  that 
John  his  son  should  have  the  occupation  thereof  as  long  as  he  had  is- 
sue; and  if  he  died  without  issue  unmarried,  that  then  Jasper  his 
younger  son  should  have  the  occupation  thereof  as  long  as  he  had  is- 
sue of  his  body;  and  if  he  died  without  issue  unmarried,  he  devised 
the  moiety  to  Dorothy  his  daughter,  the  other  moiety  to  Robert  and 
William  his  sons,  and  made  his  wife  executrix,  who  assented  to  the 
legacies  and  died.  John  and  Jasper  died  without  issue,  unmarried ; 
and  afterward  Robert  and  William  entered  upon  the  defendant,  claim- 
ing the  moiety,  and  let  to  the  plaintifit".  Upon  a  special  verdict,  all  this 
matter  being  discovered,  it  was  adjudged  for  the  plaintiff,  that  he 
should  recover  the  moiety,  which  is  all  one  case  with  the  case  in  ques- 


Ch.  8)  FUTURE    INTEUESTS   IN   PERSONAL   PROl'ERTY  153 

tion.  But  the  defendant's  counsel  in  the  writ  of  error  showed,  that 
there  was  a  difference  betwixt  the  said  cases :  for  first,  in  that  there 
is  a  devise  but  of  the  occupation  only ;  but  here,  of  the  term  itself. 
Secondly,  it  is  a  devise  here  of  his  estate  and  term  to  him  and  his  as- 
signs, wherein  is  authority  given  that  he  may  assign.  Thirdly,  the 
limitation  is  there,  if  he  die  without  issue  unmaried,  which  is  upon  the 
matter,  that  if  he  die  within  the  term ;  for  if  he  be  not  married  he  can- 
not have  issue" — but  in  the  case  here,  he  might  have  issue ;  and  yet  if 
that  issue  should  die  without  issue  in  his  life-time,  it  should  remain; 
which  the  law  will  neither  expect  nor  will  suffer :  yet  the  Justices  and 
Barons,  by  the  assent  of  Tanfield,  all  agreed,  that  judgment  should 
be  affirmed :    and  in  Hilary  Term,  20  Jac.  L,  it  was  affirmed. 


COTTON  V.  HEATH. 

(Court  of  King's  Bench,  1(«8.     1  Roll.  Abr.  C,12,  pi.  ?,.) 

If  A.,  possessed  of  a  term  for  years,  devises  it  to  B.,  his  wife,  for 
eighteen  years,  and  then  to  C,  his  eldest  son,  for  life,  and  then  to  the 
eldest  issue  male  of  C.  for  life,  although  C.  has  no  issue  male  at  the 
time  of  the  devise  and  death  of  the  devisor,  yet  if  he  has  issue  male  be- 
fore his  death,  such  issue  male  will  have  it  as  an  executory  devise,  be- 
cause, although  it  be  a  contingency  upon  a  contingency,  and  the  issue 
not  in  esse  at  the  time  of  the  devise,  yet  as  it  is  limited  to  him  but  for 
life,  it  is  good,  and  all  one  with  Manning's  Case.  On  a  reference  out 
of  Chancery  to  the  Justices  Jones,  CrokE,  and  BERKELEY,  by  them  re- 
solved without  question. 


DUKE  OF  NORFOLK'S  CASE. 

(Court  of  Chancery,  1682.    3  Ch.  Cas.  1.) 

Lord  Nottingham,  Ch.'  This  is  the  case.  The  plaintiff,  by  his  bill, 
demands  the  benefit  of  a  term  for  two  hundred  years,  in  the  barony  of 
Grostock,  upon  these  settlements. 

Henry  Frederick,  late  Earl  of  Arundel  and  Surrey,  father  of  the 
plaintiff  and  defendant,  had  issue,  Thomas,  Henry,  Charles,  Edward, 
Francis,  and  Bernard ;  and  a  daughter,  the  Lady  Katharine :  Thomas 
Lord  Maltravers,  his  eldest  son,  was  non  compos  mentis,  and  care  is 
taken  to  settle  the  estate  and  family,  as  well  as  the  present  circum- 
stances will  admit.     And  thereupon  there  are  two  indentures  drawn, 

3  In  this  ca.se  Tyord  Cliancellor  Xottingliaui  was  a.ssisted  by  Lord  Cliief  Jus- 
tice remberton.  Lord  Chief  Justice  Nortli,  and  Ix)rd  Chief  Baron  Montague. 
The  judges  delivered  tlieir  ojiiuions  in  succession  on  ^larcli  24,  1682,  agreeing 
tliat  the  limitation  in  question  was  void.  The  opinions  are  reported  .3  Ch. 
Cas.  14-26.  The  Lord  Chancellor  differed  from  the  judges,  and  delivered  the 
opinion  here  printed,  which  sutliciently  states  the  facts. 


154  CLASSIFICATION   OF   FUTURE   INTERESTS  (Part  1 

and  they  are  both  of  the  same  date.  The  one  is  an  indenture  between 
the  Earl  of  Arundel  of  the  one  part :  and  the  Duke  of  Richmond,  the 
Marquis  of  Dorchester,  Edward  Lord  Howard  of  Eastcricke,  and  Sir 
Thomas  Hatton  of  the  other  part :  it  bears  date  the  twenty-first  day  of 
March,  1647.  Whereby  an  estate  is  conveyed  to  them  and  their  heirs ; 
to  these  uses:    to  the  use  of  the  earl  for  his  life. 

After  that  to  the  countess  his  wife  for  her  life,  with  power  to  make  a 
lease  for  twenty-one  years,  reserving  the  ancient  rents. 

The  remainder  for  two  hundred  years  to  those  trustees,  and  that  up- 
on such  trusts,  as  by  another  indenture,  intended  to  bear  date  the  same 
day,  the  earl  should  limit  and  declare ;  and  then  the  remainder  of  the 
lands  are  to  the  use  of  Henry,  and  the  heirs  male  of  his  body  begotten, 
with  the  remainders  in  tail  to  Charles,  Edward,  and  the  other  brothers 
successively. 

Then  comes  the  other  indenture,  which  was  to  declare  the  tnist  of_ 
the  term  for  two  hundred  years,  for  which  all  these  preparations  are 
made,  and  that  declares  that  it  was  intended  this  term  should  attend 
the  inheritance,  and  that  the  profits  of  the  said  barony,  &c.  should  be 
received  by  the  said  Henry  Howard,  and  the  heirs  male  of  his  body,  so 
long  as  Thomas  had  any  issue  male  of  his  body  should  live,  (which  was 
consequently  only  during  his  own  life,  because  he  was  never  likely  to 
marry)  and  if  he  die  without  issue  in  the  life-time  of  Henry,  not  leav- 
ing a  wife  privement  ensient  of  a  son,  or  if  after  his  death,  the  dignity 
of  Earl  of  Arundel  should  descend  upon  Henry ;  then  Henry  or  his  is- 
sue should  have  no  farther  benefit  or  profit  of  the  term  of  two  hun- 
dred years.  Who  then  shall  ?  But  the  benefits  shall  redound  to  the 
younger  brothers  in  manner  following.  How  is  that  ?  To  Charles  and 
the  heirs  male  of  his  body,  with  the  like  remainders  in  tail  to  the  rest. 
Thus  is  the  matter  settled  by  these  indentures ;  how  this  family  was  to 
be  provided  for,  and  the  whole  estate  governed  for  the  time  to  come. 

These  indentures  are  both  sealed  and  delivered  in  the  presence  of 
Sir  Orlando  Bridgman,  Mr.  Edward  Alehorn,  and  Mr.  John  Alehorn, 
both  of  them  my  Lord  Keeper  Bridgman's  clerks ;  I  knew  them  to 
be  so. 

This  attestation  of  these  deeds  is  a  demonstration  to  me  they  were 
drawn  by  Sir  Orlando  Bridgman. 

After  this  the  contingency  does  happen :  for  Thomas  Duke  of  Nor- 
folk dies  without  issue,  and  the  earldom  of  Arundel  as  well  as  the 
dukedom  of  Norfolk,  descended  to  Henry  now  Duke  of  Norfolk,  by 
Thomas  his  death  without  issue:  presently  upon  this  the  Mar^uis_of 
Dorchester,  the  surviving  trustee  of  this  estate,  assigns  his  estate  to 
Marriot;  but  he  doth'it  upon  the  same  trusts  that  he  had  it  himself: 
Mr."  Harriot  assigns  his  interest  frankly  to  my  Lord  Henry,  the  now 
duke,  a:nd  so  has  done  what  he  can  to  merge  and  extinguish  the  term  by 
the  assigning  it  to  him,  who  has  the  inheritance. 

To  excuse  the  Marquis  of  Dorchester  from  co-operating  in  this  mat- 
ter, it  is  said,  there  was  an  absolute  necessity  so  to  do ;    because  the 


Ch.  8)  FUTURE    INTERESTS   IN  PERSONAL  PROPERTY  155 

tenants  in  the  north  would  not  be  brought  to  renew  their  estates,  while 
so  aged  a  person  did  continue  in  the  seigniory,  for  fear,  if  he  should  die 
quickly,  they  should  be  compelled  to  pay  a  new  fine.  But  nothing  in 
the  world  can  excuse  IMarriot  from  being  guilty  of  a  most  wilful  and 
palpable  breach  of  trust,  if  Charles  have. any  right  to  this  term:  so 
that  the  whole  contention  in  the  case  is,  to  make  the  estate  limited  to 
Charles  void ;  void  in  the  original  creation ;  if  not  so,  void  by  the  com- 
mon recovery  suffered  by  the  now  duke,  and  the  assignment  of  Marriot. 
If  the  estate  be  originally  void,  which  is  limited  to  Charles,  there  is  no 
harm  done;  but  if  it  only  be  avoided  by  the  assignment  of  iMarriot, 
with  the  concurrence  of  the  Duke  of  Norfolk,  he  having  notice  of  the 
trusts,  then  most  certainly  they  must  make  it  good  to  Charles  in  equity, 
for  a  palpable  breach  of  trust,  of  which  they  had  notice.  So  that  the 
question  is  reduced  to  this  main  single  point,  whether  all  this  care  that 
was  taken  to  settle  this  estate  and  family,  be  void  and  insignificant; 
and  all  this  provision  made  for  Charles  and  the  younger  children  to 
have  no  effect  ? 

I  am  in  a  very  great  strait  in  this  case :  I  am  assisted  by  as  good 
advice,  as  I  know  how  to  repose  myself  upon,  and  I  have  the  fairest 
opportunity,  if  I  concur  with  them,  and  so  should  mistake,  to  excuse 
myself,  tliat  I  did  errare  cum  patribus ;  but  I  dare  not  at  any  time 
deliver  any  opinion  in  this  place,  without  I  concur  with  myself  and  my 
conscience  too. 

I  desire  to  be  heard  in  this  case  with  great  benignity,  and  with  great 
excuse  for  what  I  say,  for  I  take  this  question  to  be  of  so  universal  a 
concernment  to  all  men's  rights  and  properties,  in  point  of  disposing  of 
their  estates,  as  to  most  conveyances,  made  and  settled  in  the  late 
times  and  yet  on  foot,  that  being  afraid  I  might  shake  more  settlements 
than  I  am  willing  to  do,  I  am  not  disposed  to  keep  so  closely  and 
strictly  to  the  rules  of  law  as  the  judges  of  the  common  law  do,  as  not 
to  look  to  the  reasons  and  consequences  tliat  may  follow  upon  the  de- 
termination of  this  case. 

I  cannot  say  in  this  case,  that  this  limitation  is  void,  and  because 
this  is  a  point,  that  in  courts  of  equity  (which  are  not  favored  by  the 
judgments  of  the  courts  of  law)  is  seldom  debated  with  any  great  indus- 
try at  the  bar;  but  where  they  are  possessed  once  of  the  cause,  they 
press  for  a  decree,  according  to  the  usual  and  known  rules  of  law ;  and 
think  we  are  not  to  examine  things.  And  because  it  is  probable  this 
cause,  be  it  adjudged  one  way  or  other,  may  come  into  the  parliament,  I 
will  take  a  little  pains  to  open  the  case,  the  consequences  that  depend 
upon  it,  and  the  reasons  that  lie  upon  me,  as  thus  persuaded,  to  sus- 
pend my  opinion. 

Whether  this  limitation  to  Charles  be  void  or  no,  is  the  question. 
Now,  first,  these  things  are  plain  and  clear,  and  by  taking  notice  of 
what  is  plain  and  clear,  we  shall  come  to  see  what  is  doubtful. 

1.  That  the  term   in  question,  though  it  were  attendant  upon  the 


156  CLASSIFICATION   OF   FUTURE   INTERESTS  (Part   1 

inheritance,  at  first,  yet  upon  the  happening  of  the  contingency,  it  is 
become  a  term  in  gross  to  Charles. 

2.  That  tlie  trust  of  a  term  in  gross  can  be  Hmited  no  otherwise  in 
equity,  than  the  estate  of  a  term  in  gross  can  be  hmited  in  law :  for  I 
am  not  setting  up  a  rule  of  property  in  chancery,  other  than  that  which 
is  the  rule  of  property  at  law. 

3.  It  is  clear,  that  the  legal  estate  of  a  term  for  years,  whether  it  be 
a  long  or  a  short  term,  cannot  be  limited  to  any  man  in  tail,  with  the 
remainder  over  to  another  after  his  death  without  issue  ;  that  is  flat  and 
plain,  for  that  is  a  direct  perpetuity. 

4.  If  a  term  be  limited  to  a  man  and  his  issue,  and  if  that  issue  die 
without  issue,  the  remainder  over,  the  issue  of  that  issue  takes  no 
estate ;  and  yet  because  the  remainder  over  cannot  take  place,  till  the 
issue  of  that  issue  fail,  that  remainder  is  void  too,  which  was  Reeve's 
Case ;   and  the  reason  is,  because  that  looks  towards  a  perpetuity. 

5.  If  a  term  be  limited  to  a  man  for  life,  and  after  to  his  first,  sec- 
ond, third,  &c.  and  other  sons  in  tail  successively,  and  for  default  of 
such  issue  the  remainder  over,  though  the  contingency  never  happen, 
yet  that  remainder  is  void,  though  there  were  never  a  son  then  born  to 
him ;  for  that  looks  like  a  perpetuity  and  this  was  Sir  William  Back- 
hurst  his  Case  in  the  sixteen  of  this  king. 

6.  Yet  one  step  further  than  this,  and  that  is  Burgiss's  Case.  A 
term  is  limited  to  one  for  life,  with  contingent  remainders  to  his  sons  in 
tail,  with  remainder  over  to  his  daughter,  though  he  had  no  son;  yet 
because  it  is  foreign  and  distant  to  expect  a  remainder  after  the  death 
of  a  son  to  be  born  without  issue,  that  having  a  prospect  of  a  perpetui- 
ty, also  was  adjudged  to  be  void. 

These  things  having  been  settled,  and  by  these  rules  has  this  court 
always  governed  itself :   but  one  step  more  tliere  is  in  this  case. 

7.  If  a  term  be  devised,  or  the  trust  of  a  term  limited  to  one  for  life, 
with  twenty  remainders  for  life,  successively,  and  all  the  persons  in 
esse,  and  alive  at  the  time  of  the  limitation  of  their  estates,  these  though 
they  look  like  a  possibility  upon  a  possibility,  are  all  good,  because  tliey 
produce  no  inconvenience,  they  wear  out  in  a  little  time  with  an  easy 
interpretation,  and  so  was  Alford's  Case.    I  will  yet  go  farther. 

8.  In  the  case  cited  by  Air.  Holt,  Cotton  and  Heath's  Case,  a  term 
is  devised  to  one  for  eighteen  years,  after  to  C.  his  eldest  son  for  life, 
and  then  to  the  eldest  issue  male  of  C.  for  life,  though  C.  had  not  any 
issue  male  at  the  time  of  the  devise,  or  death  of  the  devisor,  but  before 
the  death  of  C.  it  was  resolved  by  Mr.  Justice  Jones,  Mr.  Justice  Crook, 
and  Mr.  Justice  Berkley,  to  whom  it  was  referred  by  the  Lord  Keeper 
Coventry,  that  it  only  being  a  contingency  upon  a  life  that  would 
speedily  be  worn  out,  it  was  very  good ;  for  that  there  may  be  a  possi- 
bility upon  a  possibility,  and  that  there  may  be  a  contingency  upon  a 
contingency,  is  neither  unnatural  nor  absurd  in  itself;  but  the  contrary 
rule  given  as  a  reason  by  my  Lord  Popham  in  the  Rector  of  Cheding- 


Ch.  8)  FUTURE    INTERESTS   IX   PERSONAL   PROPERTY  157 

ton's  Case,  looks  like  a  reason  of  art ;  but,  in  truth,  has  no  kind  of  rea- 
son in  it,  and  I  have  known  that  rule  often  denied  in  Westminster  Hall. 
In  truth,  every  executory  devise  is  so,  and  you  will  find  that  rule  not  to 
be  allowed  in  Blanford  and  Blanford's  Case,  13  Jac.  I.  part  of  my 
Lord  Rolls,  318,  where  he  says,  if  that  rule  take  place,  it  will  shake 
several  common  assurances :  and  he  cites  Paramour's  and  Yardley's 
Case  in  the  commentaries  where  it  was  adjudged  a  good  devise,  though 
it  were  a  possibility  upon  a  possibility. 

These  conclusions,  which  I  have  thus  laid  down,  are  but  prelimina- 
ries to  the  main  debate.  It  is  now  fit  we  should  come  to  speak  to  the 
main  question  of  the  case,  as  it  stands  upon  its  own  reason,  distin- 
guished from  the  reasons  of  these  preliminaries;  and  so  the  case  is 
this. 

The  trust  of  a  term  for  two  hundred  years  is  limited  to  Henry  in  tail, 
provided  if  Thomas  die  without  issue  in  the  life  of  Henry,  so  that  the 
earldom  shall  descend  upon  Henry,  then  go  to  Charles  in  tail ;  and 
whether  this  be  a  good  limitation  to  Charles  in  tail,  is  the  question ;  for 
most  certainly  it  is  a  void  limitation  to  Edward  in  tail,  and  a  void  limi- 
tation to  the  other  brothers  in  tail :  but  whether  it  be  good  to  Charles 
is  the  doubt  who  is  the  first  taker  of  this  term  in  gross ;  for  so  it  is  (I 
take  it)  now  become,  and  I  do,  under  favor,  differ  from  my  Lord  Chief 
Justice  in  that  point ;  for,  if  Charles  die,  it  will  not  return  to  Henry ; 
for  that  is  my  Lord  Coke's  error  in  Leonard  I<oveis's  Case ;  for  he 
says,  that  if  a  term  be  devised  to  one  and  the  heirs  male  of  his  body, 
it  shall  go  to  him  or  his  executors,  no  longer  than  he  has  heirs  male  of 
his  body ;  but  it  was  resolved  otherwise  in  Leventhorp's  and  Ashby's 
Case,  11  Car.  B.  R.  Rolls's  adjudgment,  title  devise,  fol.  611,  for  these 
Avords  are  not  the  limitation  of  the  time,  but  an  absolute  disposition  of 
the  term. 

But  now  let  us,  I  say,  consider  w^hether  this  limitation  be  good  to 
Charles  or  no.     It  hath  been  said. 

Object.  1.  It  is  not  good  by  any  means ;  for  it  is  a  possibility  upon  a 
possibility. 

Answ.  That  is  a  weak  reason,  and  there  is  nothing  of  argument  in  it, 
for  there  never  was  yet  any  devise  of  a  term  with  remainder  over,  but 
did  amount  to  a  possibility  upon  a  possibility,  and  executory  remainders 
will  make  it  so. 

Obj.  2.  Another  thing  w^as  said,  it  is  void,  because  it  doth  not  deter- 
mine the  whole  estate,  and  so  they  compare  it  to  Sir  Anthonv  Mild- 
may's  Case,  where  it  is  laid  down  as  a  rule,  that  every  limitation  or 
condition  ought  to  defeat  the  entire  estate,  and  not  to  defeat  part  and 
leave  part  not  defeated;  and  it  cannot  make  an  estate  to  cease  as  to 
one  person,  and  not  as  to  the  other.    But, 

Answ\  I  do  not  think,  that  any  case  or  rule  was  ever  worse  applied 
than  that  to  this ;  for  if  you  do  observe  this  case,  here  is  no  proviso  at 
all  annexed  to  the  legal  estate  of  the  term,  but  to  the  equitable  estate, 


158  CLASSIFICATION   OF  FUTURE  INTERESTS  (Part  1 

that  is  built  upon  the  legal  estate,  unto  the  estate  to  Henry,  and  the 
heirs  male  of  his  body,  to  attend  the  inheritance  with  a  proviso  if 
Thomas  die  without  issue  in  Henry's  life,  and  the  earldom  come  to 
Henry,  then  to  Charles  :  which  doth  determine  the  estate  to  Henry,  and 
his  issue;  but  the  other  estate  given  to  Charles  doth  arise  upon  this 
proviso,  which  makes  it  an  absurdity  to  say,  that  the  same  proviso, 
upon  which  the  estate  ariseth,  should  determine  that  estate  too. 

Obj.  3.  The  great  matter  objected  is,  it  is  against  all  the  rules  of 
law,  and  tends  to  a  perpetuity. 

Answ.  If  it  tends  to  a  perpetuity,  there  needs  no  more  to  be  said, 
for  the  law  has  so  long  labored  against  perpetuities,  that  it  is  an  unde- 
niable reason  against  any  settlement,  if  it  can  be  found  to  tend  to  a 
perpetuity. 

Therefore  let  us  examine  whether  it  do  so,  and  let  us  see  what  a 
perpetuity  is,  and  whether  any  rule  of  law  is  broken  in  this  case. 

A  perpetuity  is  the  settlement  of  an  estate  or  an  interest  in  tail,  with 
such  remainders  expectant  upon  it,  as  are  in  no  sort  in  the  power  of 
the  tenant  in  tail  in  possession,  to  dock  by  any  recovery  or  assign- 
ment, but  such  remainders  must  continue  as  perpetual  clogs  upon  the 
estate ;  such  do  fight  against  God,  for  they  pretend  to  such  a  stability 
in  human  affairs,  as  the  nature  of  them  admits  not  of,  and  they  are 
against  the  reason  and  the  policy  of  the  law,  and  therefore  not  to  be 
endured. 

But  on  the  other  side,  future  interests,  springing  trusts,  or  trusts 
executory,  remainders  that  are  to  emerge  and  arise  upon  contingencies, 
are  quite  out  of  the  rules  and  reasons  of  perpetuities,  nay,  out  of  the 
reason  upon  which  the  policy  of  the  law  is  founded  in  those  cases, 
especially,  if  they  be  not  of  remote  or  long  consideration ;  but  such  as 
by  a  natural  and  easy  interpretation  will  speedily  wear  out,  and  so 
things  come  to  their  right  channel  again. 

Let  us  examine  the  rule  with  respect  to  freehold  estates,  and  see 
whether  there  it  will  amount  to  the  same  issue. 

There  is  not  in  tlie  law  a  clearer  rule  than  this,  that  there  can  be  no 
remainders  limited  after  a  fee-simple,  so  is  the  express  book-case,  29 
Hen.  Vni.  33,  in  my  Lord  Dyer ;  but  yet  the  nature  of  things,  and  the 
necessity  of  commerce  between  man  and  man,  have  found  a  way  to 
pass  by  that  rule,  and  that  is  thus ;  either  by  way  of  use,  or  by  way  of 
devise:  therefore  if  a  devise  be  to  a  man  and  his  heirs,  and  if  he  die 
without  issue  in  the  life  of  B.  then  to  B.  and  his  heirs:  this  is  a  fee- 
simple  upon  a  fee-simple,  and  yet  it  has  been  held  to  be  good. 

My  Lord  Chief  Baron  did  seem  to  think,  that  this  resolution  did  take 
its  original  from  Pell's  and  Brown's  Case ;  but  it  did  not  so,  the  law 
was  settled  before ;  you  may  find  it  expressly  resolved  19  Eliz.  in  a  case 
between  Hynde  and  Lyon,  3  Leonard.  Which,  of  the  books  that  have 
lately  come  out,  is  one  of  the  best ;  and  it  was  there  adjudged  to  be  so 
good  a  limitation,  that  the  heir  who  pleaded  riens  per  descent  was 


Ch.  8)  FUTURE    INTERESTS   IN   PERSONAL   PROPERTY  159 

forced  to  pay  the  debt,  and  it  had  the  concurrence  of  a  judgment  in 
38  EHz.  grounded  upon  the  reason  of  Wellock  and  Hammond's  Case, 
cited  in  Beraston's  Case,  where  it  is  said,  Crook,  Ehz.  204,  in  a  devise 
it  may  well  be,  that  an  estate  in  fee  shall  cease  in  one,  and  be  trans- 
ferred to  another :  all  this  was  before  Pell's  and  Brown's  Case,  which 
was  in  18  Jac.  It  is  true,  it  was  made  a  question  afterwards  in  the 
Serjeant's  case ;  but  what  then  ?  We  all  know  that  to  be  no  rule  to 
judge  by;  for  what  is  used  to  exercise  the  wits  of  the  serjeants,  is  not 
a  governing  opinion  to  decide  the  law.  It  was  also  adjudged  in  Ilil. 
1649,  when  my  Lord  Rolls  was  Chief  Justice,  and  again  in  Mich.  1650, 
and  after  that  indeed  in  1651,  it  was  resolved  otherwise  in  Jay  and 
Jay's  Case,  but  it  has  been  often  agreed  that  where  it  is  within  the  com- 
pass of  one  life,  that  the  contingency  is  to  happen,  there  is  no  danger 
of  a  perpetuity.  And  I  oppose  it  to  that  rule  which  was  taken  by  one 
of  the  lords  and  judges,  that  where  no  remainders  can  be  limited,  no 
contingent  remainders  can  be  limited,  which  I  utterly  deny,  for  there 
can  be  no  remainder  limited  after  a  fee-simple,  yet  there  may  a  con- 
tingent fee-simple  arise  out  of  the  first  fee,  as  hath  been  shown. 

Thus  it  is  agreed  to  be  by  all  sides  in  the  case  of  an  inheritance ;  but 
now  say  they,  a  lease  for  years,  which  is  a  chattel,  will  not  bear  a  con- 
tingent limitation  in  regard  of  the  poverty  and  meanness  of  a  chattel- 
estate.  Now  as  to  this  point,  the  difference  between  a  chattel  and  an 
inheritance  is  a  difference  only  in  words,  but  not  in  substance,  nor  in 
reason,  or  the  nature  of  the  thing;  for  the  owner  of  a  lease  has  as 
absolute  a  power  over  his  lease  as  he  that  hath  an  inheritance  has 
over  that.  And  therefore  where  no  perpetuity  is  introduced,  nor  any 
inconveniency  doth  appear,  there  no  rule  of  law  is  broken. 

The  reasons  that  do  support  the  springing  trust  of  a  term  as  well  as 
the  springing  use  of  an  inheritance,  are  these. 

1.  Because  it  hath  happened  sometimes,  and  doth  frequently,  that 
men  have  no  estates  at  all,  but  what  consist  in  leases  for  years;  now 
it  were  not  only  very  severe,  but  (under  favor)  very  absurd,  to  say  that 
he  who  has  no  other  estate  but  what  consists  in  leases  for  years,  shall 
be  incapable  to  provide  for  the  contingencies  of  his  own  family,  though 
these  are  directly  within  his  view  and  immediate  prospect.  And  yet 
if  that  be  the  rule,  so  it  must  be ;  for  I  will  put  the  case ;  a  man  who 
has  no  other  estate  but  leases  for  years,  chattels  real,  treats  for  the 
marriage  of  his  son  and  thereupon  it  comes  to  this  agreement:  these 
leases  shall  be  settled  as  a  jointure  for  the  wife,  and  provision  for  the 
children :  says  he,  I  am  content,  but  how  shall  it  be  done  ?  Why  thus : 
you  shall  asign  all  these  terms  to  John  A.  Styles,  in  trust  for  yourself 
and  your  executors,  if  the  marriage  take  no  effect ;  but  then,  if  it  takes 
effect,  to  your  son  while  he  lives,  to  his  wife  after  while  she  lives,  with 
remainders  over.  I  would  have  any  one  tell  me  whether  this  were  a 
void  limitation  upon  a  marriage  settlement ;   or  if  it  be,  what  a  stranp-e 


160  CLASSIFICATION   OF   FLTTURE   INTERESTS  (Part  1 

absurdity  is  it,  that  a  man  shall  settle  it  if  ihe  marriage  take  no  efifect, 
and  shall  not  settle  if  the  marriage  happen. 

2.  Suppose  the  estate  had  been  limited  to  Henry  Howard  and  the 
heirs  male  of  his  body,  till  the  death  of  Thomas  without  issue,  then  to 
Charles,  there  it  had  been  a  void  limitation  to  Charles :  if  then  the  addi- 
tion of  those  words,  if  Thomas  die  witliout  issue  in  the  life  of  Henry, 
&c.  have  not  mended  the  matter,  then  all  that  addition  of  words  goes 
for  nothing,  which  it  is  unreasonable  and  absurd  to  think  it  should. 

3.  Another  thing  there  is,  which  I  take  to  be  unanswerable,  and 
gather  it  from  what  fell  from  my  Lord  Chief  Justice  Pemberton ;  and 
when  I  can  answer  tliat  case,  I  shall  be  able  to  answer  myself  very  much 
for  that  which  I  am  doing.  Suppose  the  proviso  had  been  thus  penned, 
and  if  Thomas  die  without  issue  male,  living  Henry,  so  that  the  earl- 
dom of  Arundel  descend  upon  Henry,  then  the  term  of  two  hundred 
years  limited  to  him  and  his  issue,  shall  utterly  cease  and  determine, 
but  then  a  new  term  of  two  hundred  years  shall  arise  and  be  limited  to 
the  same  trustees,  for  the  benefit  of  Charles  in  tail.  This  he  thinks 
might  have  been  well  enough,  and  attained  the  end  and  intention  of  the 
family,  because  then  this  would  not  be  a  remainder  in  tail  upon  a  tail, 
but  a  new  term  created. 

Pray  let  us  so  resolve  cases  here,  that  they  may  stand  with  the  reason 
of  mankind,  when  they  are  debated  abroad.  Shall  that  be  reason  here 
that  is  not  reason  in  any  part  of  the  world  besides?  I  would  fain  know 
the  difference,  why  I  may  not  raise  a  new  springing  trust  upon  the  same 
term,  as  well  as  a  new  springing  term  upon  the  same  trust;  that  is 
such  a  chicanery  of  law  as  will  be  laughed  at  all  over  the  Christian 
world. 

4.  Another  reason  I  go  on  is  this ;  that  the  meanness  of  the  consid- 
eration of  a  term  for  years,  and  of  a  chattel-interest,  is  not  to  be  re- 
garded :  for  whereas  this  will  be  no  reason  anywhere  else ;  so  I  shall 
show  you,  that  this  reason,  as  to  the  remainder  of  a  chattel-interest,  is 
a  reason  that  has  been  exploded  out  of  Westminster  Hall.  There  was 
a  time  indeed  that  this  reason  did  so  far  prevail,  that  all  the  judges  in 
the  time  of  my  Lord  Chancellor  Rich,  did  6  Edvardi  VL  deliver  their 
opinions,  that  if  a  term  for  years  be  devised  to  one,  provided  that  if 
the  devisee  die,  living  J.  S.  then  go  to  J.  S.  that  remainder  to  J.  S. 
is  absolutely  void,  because  such  a  chattel-interest  of  a  term  for  years  is 
less  than  a  term  for  life,  and  the  law  will  endure  no  limitation  over. 
Now  this  being  a  reason  against  sense  and  nature,  the  world  was  not 
long  governed  by  it,  but  in  10  Eliz.  in  Dyer,  they  began  to  hold  the 
remainder  was  good  by  devise;  and  so  15  Eliz.  seems  to,  and  19  Eliz. 
it  was  by  the  judges  held  to  be  good  remainder  ;  and  that  was  the  first 
time  that  an  executory  remainder  of  a  term  was  held  to  be  good.  When 
the  chancery  did  begin  to  see  that  the  judges  of  the  law  did  govern 
themselves  by  the  reason  of  the  thing,  this  court  followed  their  opinion, 
the  better  to  fix  them  in  it,  they  allowed  of  bills  by  the  remainder-man, 


Ch.  8)  FUTURE    INTERESTS  IN  PERSONAL  PROPERTY  161 

to  compel  the  devisee  of  the  particular  estate,  to  put  in  security  that  he 
in  remainder  should  enjoy  it  according  to  the  limitation.  And  for  a 
great  while  so  the  practice  stood,  as  they  thought  it  might  well,  because 
of  tlie  resolution  of  the  judges,  as  we  have  shown ;  but  after  this  was 
seen  to  multiply  the  chancery  suits,  then  they  began  to  resolve  that 
there  w^as  no  need  of  that  way,  but  the  executory  remainder-man  should 
enjoy  it,  and  the  devisee  of  the  particular  estate  should  have  no  power 
to  bar  it.  Men  began  to  presume  upon  the  judges  then,  and  thought  if 
it  were  good  as  to  remainders  after  estates  for  lives,  it  would  be  good 
also  as  to  remainders  upon  estates-tail:  that  the  judges  would  not 
endure,  and  that  is  so  fixed  a  resolution,  that  no  court  of  law  or  equity 
ever  attempted  to  vreok  [sic]  in  the  world.  Now  then  come  we  to  this 
case,  and  if  so  be  where  it  does  not  tend  to  a  perpetuity,  a  chattel- 
interest  will  bear  a  remainder  over,  upon  the  same  reason  it  will  bear  a 
remainder  over  upon  a  contingency,  where  that  contingency  doth  wear 
out  within  the  compass  of  a  life,  otherwise,  it  is  only  to  say,  it  shall 
not,  because  it  shall  not:  for  there  is  no  more  inconveniences  in  the 
one  than  in  the  other. 

Come  we  then,  at  last,  to  that  which  seems  most  to  choke  the  plain- 
tiff's title  to  this  term,  and  that  is  the  resolution  in  Child  and  Bayly's 
Case;  for  it  is  upon  that  judgment,  it  seems,  all  conveyances  must 
stand  or  be  shaken,  and  our  decrees  made.  Now  therefore  I  will  take 
the  liberty  to  see  what  that  case  is,  and  how  the  opinion  of  it  ought  to 
prevail  in  our  case. 

1.  If  Child  and  Bayly's  Case  be  no  more  than  as  it  is  reported  by 
Rolls,  part  2d,  fol.  119,  then  it  is  nothing  to  the  purpose:  a  devise  of 
a  term  to  Dorothy  for  life,  the  remainder  to  William,  and  if  he  dies 
without  issue,  to  Thomas,  without  saying,  in  the  life  of  Thomas ;  and 
so  it  is  within  the  common  rule  of  a  limitation  of  a  term  in  tail,  with 
remainder  over,  which  cannot  be  good. 

But  if  it  be  as  Justice  Jones  has  reported  it,  fol.  15,  then  it  is  as  far 
as  it  can  go,  an  authority;  for  it  is  there  said  to  be,  living  Thomas. 
But  the  case,  under  favor,  is  not  altogether  as  Mr.  Justice  Jones  hath 
reported  it  neither;  for  I  have  seen  a  copy  of  the  record  upon  this 
account;  and,  by  the  way,  no  book  of  law^  is  so  ill  corrected,  or  so  ill 
printed  as  that. 

The  true  case  is,  as  it  is  reported  by  Mr.  Justice  Crook;  and  with 
]\Ir.  Justice  Crook's  report  of  it,  doth  my  Lord  Rolls  agree,  in  his 
abridgment,  title  Devise,  612.  There  it  is,  a  term  of  seventy-six  years 
is  devised  to  Dorothy  for  life,  then  to  William  and  his  assigns  all  the 
rest  of  the  term,  provided  if  William  die  without  issue  then  living,  then 
to  Thomas ;  and  this  is  in  effect  our  present  case ;  I  agree  it.  But  that 
which  I  have  to  say  to  this  case  is. 

First,  it  must  be  observed,  that  the  resolution  there  did  go  upon 
several  reasons,  which  are  not  to  be  found  in  this  case. 

1.  One  reason  was  touched  upon  by  my  Lord  Chief  Baron,  that  \\'i\- 
4  Kales  Pbop. — 11 


1G2     .  CLASSIFICATION   OF  FUTURE   INTERESTS  (Part  1 

Ham  having  the  term  to  him  and  his  assigns,  there  could  be  no  remain- 
der over  to  Thomas,  of  which  words  there  is  no  notice  taken  by  Mr. 
Justice  Jones- 

2.  Dorothy  the  devisee  for  life,  was  executrix,  and  did  assent  and 
grant  the  lease  to  William,  both  which  reasons  my  Lord  Rolls  doth  lay 
hold  upon,  as  material,  to  govern  the  case. 

3.  William  might  have  assigned  his  interest,  and  then  no  remainder 
could  take  place,  for  the  term  was  gone. 

4.  He  might  have  had  issue,  and  that  issue  might  have  assigned,  and 
then  it  had  put  all  out  of  doubt. 

5.  But  the  main  reason  of  all,  which  makes  me  oppose  it,  ariseth  out 
of  the  record,  and  is  not  taken  notice  of  in  either  of  the  reports  of 
Rolls,  or  Jones,  or  in  Rolls'  abridgment.  The  record  of  that  case  goes 
farther,  for  the  record  says :  there  was  a  farther  limitation  upon  the 
death  of  Thomas  without  issue  to  go  to  the  daughter,  which  was  a 
plain  affectation  of  a  perpetuity  to  multiply  contingencies.  It  further 
appears  by  the  record,  that  the  father's  will  was  made  the  10  of  Eliz. 
Dorothy,  the  devisee  for  life,  held  it  to  the  24,  and  then  she  granted 
and  assigned  the  term  to  William;  he  under  that  grant  held  it  till  the 
31  of  Eliz.  and  then  re-granted  it  to  his  mother,  and  died;  the  mother 
held  it  till  the  1  of  R.  James,  and  then  she  died ;  the  assignees  of  the 
mother  held  it  till  14  Jac.  and  then,  and  not  till  then,  did  Thomas,  the 
younger  son,  set  up  a  title  to  that  estate ;  and  before  that  time  it  ap- 
pears by  the  record,  there  had  been  six  several  alienations  of  the  term 
to  purchasers,  for  a  valuable  consideration,  and  the  term  renewed  for 
a  valuable  fine  paid  to  the  Lord.  And  we  do  wonder  now,  that  after 
so  long  an  acquiescence  as  from  10  Eliz.  to  14  Jac.  and  after  such  suc- 
cessive assignments  and  transactions,  that  the  judges  began  to  lie  hard 
upon  Thomas,  as  to  his  interest  in  law,  in  the  term,  especially  when 
the  reasons  given  in  the  reports  of  the  case,  wese  legal  inducements  to 
guide  their  judgments,  of  which  there  are  none  in  our  case?    But  then, 

Secondly,  at  last,  allowing  this  case  to  be  as  full  and  direct  an  au- 
thority as  is  possible,  and  as  they  would  wish,  that  rely  upon  it;  then 
I  say — 

1.  The  resolution  in  Child  and  Bayly's  Case,  is  a  resolution  that  nev- 
er had  any  resolution  like  it  before  nor  since. 

2.  It  is  a  resolution  contradicted  by  some  resolutions ;  and  to  show, 
that  the  resolution  has  been  contradicted,  there  is — 

1.  The  case  of  Cotton  and  Heath,  which  looks  very  like  a  contrary 
resolution ;  there  is  a  term  limited  to  A.  for  eighteen  years,  the  remain- 
der to  B.  for  life,  the  remainder  to  the  first  issue  of  B.  for  life,  this 
contingent  upon  a  contingent  was  allowed  to  be  good,  because  it  would 
wear  out  in  a  short  time.    But 

2.  To  come  up  more  fully  and  closely  to  it,  and  show  you,  that  I  am 
bound  by  the  resolutions  of  this  court,  there  was  a  fuller  and  flatter 
case  21  Car.  2,  in  July  1669,  between  Wood  and  Saunders.  The  trust 
of  a  long  lease  is  limited  and  declared  thus:    to  the  father  for  sixty 


Ch.  S)  FUTURE    INTERESTS   IN  PERSONAL  PROPERTY  163 

years  if  he  lived  so  long;  then  to  the  mother  for  sixty  years,  if  she 
lived  so  long ;  then  to  John  and  his  executors  if  he  survived  his  father 
and  mother;  and  if  he  died  in  their  lifetime,  having  issue,  then  to  his 
issue ;  but  if  he  die  without  issue,  living  the  father  or  mother,  then  the 
remainder  to  Edward  in  tail.  John  did  die  without  issue,  in  the  life- 
time of  the  father  and  mother,  and  the  question  was,  whether  Edward 
should  take  this  remainder  after  their  death  ?  and  it  was  resolved  by 
my  Lord  Keeper  Bridgeman,  being  assisted  by  Judge  Twisden  and 
Judge  Rainsford,  that  the  remainder  to  Edward  was  good,  for  the 
whole  term  had  vested  in  John,  if  he  had  survived;  yet  the  contingen- 
cy never  happening,  and  so  wearing  out  in  the  compass  of  two  lives  in 
being,  the  remainder  over  to  Edward  might  well  be  limited  upon  it. 

Thus  we  see,  that  the  same  opinion  which  Sir  Orlando  Bridgeman 
held  when  he  was  a  practiser,  and  drew  these  conveyances,  upon  which 
the  question  now  ariseth,  remained  with  him  v.-hen  he  was  the  judge  in 
this  court,  and  kept  the  seals ;  and  by  the  way,  I  think  it  is  due  to  the 
memory  of  so  great  a  man,  whenever  we  speak  of  him,  to  mention  him 
with  great  reverence  and  veneration  for  his  learning  and  integrity. 

Object.  They  will  perhaps  say,  where  will  you  stop  if  not  at  Child 
and  Bayly's  Case? 

Ansv/.  Where?  why  ever}'where,  where  there  is  not  any  incon- 
venience, any  danger  of  a  perpetuity;  and  whenever  you  stop  at  the 
limitation  of  a  fee  upon  a  fee,  there  we  will  stop  in  the  limitation  of  a 
term  of  3'ears.  No  man  ever  yet  said,  a  devise  to  a  man  and  his  heirs, 
and  if  he  die  without  issue,  living  B.  then  to  B.  is  a  naughty  remainder, 
that  is  Pell's  and  Brown's  Case. 

Now  the  ultimum  quod  sit,  or  the  utmost  limitation  of  a  fee  upon  a 
fee,  is  not  yet  plainly  determined,  but  it  will  be  soon  found  out,  if  men 
shall  set  their  wits  on  work  to  contrive  by  contingencies,  to  do  that 
which  the  law  has  so  long  labored  against,  the  thing  will  make  itself 
evident,  where  it  is  inconvenient,  and  God  forbid,  but  that  mischief 
should  be  obviated  and  prevented. 

I  have  done  with  the  legal  reasons  of  the  case:  it  is  fit  for  us  here 
a  little  to  observe  the  equitable  reasons  of  it ;  and  I  think  this  deed  is 
good  both  in  law  and  equity ;  and  the  equity  in  this  case  is  much  strong- 
er, and  ought  to  sway  a  man  very  much  to  incline  to  the  making  good 
this  settlement  if  he  can.    For, 

1.  It  was  prudence  in  the  earl  to  take  care,  that  when  the  honor  de- 
scended upon  Henry,  a  little  better  support  should  be  given  to  Charles, 
who  was  the  next  man,  and  trod  upon  the  heels  of  the  inheritance. 

2.  Though  it  was  always  uncertain  whether  Thomas  would  die  with- 
out issue,  living  Henry,  yet  it  was  morally  certain  that  he  would  die 
without  issue,  and  so  the  estate  and  honor  come  to  the  younger  son: 
for  it  was  with  a  careful  circumspection  always  provided,  that  he 
should  not  marry  till  he  should  recover  himself  into  such  estate  of 
body  and  mind,  as  might  suit  with  the  honor  and  dignity  of  the  family. 

3.  It  is  a  very  hard  thing  for  a  son  to  tell  his  father,  that  the  provi- 


164  CLASSIFICATION   OF  FUTURE   INTERESTS  (Part  1 

sion  he  has  made  for  his  younger  brothers  is  void  in  law,  but  it  is  much 
harder  for  him  to  tell  him  so  in  chancery.  And  if  such  a  provision  be 
void,  it  had  need  be  void  with  a  vengeance ;  it  had  need  be  so  clearly 
void,  that  it  ought  to  be  a  prodigy  if  it  be  not  submitted  to. 

Now  where  there  is  a  perpetuity  introduced,  no  cloud  hanging  over 
the  estate  but  during  a  life,  which  is  a  common  possibility  where  there 
is  no  inconvenience  in  the  earth,  and  where  the  authorities  of  this  court 
concur  to  make  it  good ;  to  say,  all  is  void,  and  to  say  it  here,  I  declare 
it,  I  know  not  how  to  do  it.  To  run  so  coimter  to  the  judgment  of  that 
great  man,  my  Lord  Keeper  Bridgeman,  who  hath  advised  this  settle- 
ment ;  and  when  he  was  upon  his  oath  in  this  place  decreed  it  good.  I 
confess  his  authority  is  too  hard  for  me  to  resist,  though  I  am  assisted 
by  such  learned  and  able  judges,  and  will  pay  as  great  a  deference  to 
their  opinions  as  any  man  in  the  world  shall. 

If  then  this  should  not  be  void,  there  is  no  need  for  the  merger  by 
the  assignment  or  the  recovery  to  be  considered  in  the  case :  for  if  so 
be  this  be  a  void  limitation  of  the  trust,  and  they  who  had  notice  of  it, 
will  palpably  break  it,  they  are  bound  by  the  rules  of  equity  to  make  it 
good  by  making  some  reparation.  Nay,  which  is  more,  if  the  heir  enter 
upon  the  estate  to  defeat  the  trust,  that  very  estate  doth  remain  in  eq- 
uity infected  with  the  trust;  which  was  the  case  of  my  lord  of  Tho- 
mond ;  so  also  was  the  resolution  in  Jackson  and  Jackson's  Case :  so 
that  to  me  the  right  appears  clear,  and  the  remedy  seems  to  be  difficult. 

Therefore  my  present  thoughts  are,  that  the  trust  of  this,  term  was 
well  limited  to  Charles,  who  ought  to  have  the  trust  of  the  whole  term 
decreed  to  him,  and  an  account  of  the  mean  profits,  for  the  time  by 
past,  and  a  recompense  made  to  him  from  the  duke  and  Harriot  for 
the  time  to  come.  But  I  do  not  pay  so  little  reverence  to  the  company 
I  am  in,  as  to  run  down  their  solemn  arguments  and  opinions  upon  my 
present  sentiments;  and  therefore  I  do  suspend  the  enrolment  of  any 
decree  in  this  case,  as  yet:  but  I  will  give  myself  some  time  to  con- 
sider, before  I  take  any  final  resolution,  seeing  the  lords  the  judges  do 
differ  from  me  in  their  opinions. 

[On  June  17,  1682,  the  case  was  reargued,  and  the  Lord  Chancellor 
gave  judgment  as  follows:] 

Lord  Nottingham,  Ch.  I  am  not  sorry  for  the  liberty  that  was  tak- 
en at  the  bar  to  argue  this  over  again,  because  I  desired  it  should  be  so ; 
for  in  truth  I  am  not  in  love  with  my  own  opinion,  and  I  have  not 
taken  all  this  time  to  consider  of  it,  but  with  very  great  willingness  to 
change  it,  if  it  were  possible  I  have  as  fair  and  as  justifiable  an  op- 
portunity to  follow  my  own  inclinations  (if  it  be  lawful  for  a  judge  to 
say  he  has  any)  as  I  could  desire;  for  I  cannot  concur  with  the  three 
chief  judges,  and  make  a  decree  that  would  be  unexceptionable:  but  it 
is  my  decree,  I  must  be  saved  by  my  own  faith,  and  must  not  decree 
against  my  own  conscience  and  reason. 

It  will  be  good  for  the  satisfaction  of  the  public  in  this  case,  to  take 
notice  how  far  the  court  is  agreed  in  this  case,  and  then  see  where  they 


Ch.  8)  FUTURE    INTERESTS   IN   PERSONAL   PROPERTY  1G5 

differ,  and  upon  what  grounds  they  differ ;  and  whether  anything  that 
hath  been  said  be  a  ground  for  the  changing  this  opinion.  The  court 
agreed  thus  far 

That  in  this  case  it  is  all  one,  the  limitation  of  the  trust  of  a  term,  or 
the  limitation  of  the  estate  of  a  term,  all  depends  upon  one  and  the 
same  reason.  The  court  is  likewise  agreed  (which  I  should  have  said 
first,  to  despatch  it  out  of  the  case,  that  it  may  not  trouble  the  case  at 
all)  that  the  surrender  of  Harriot  to  the  Duke  of  Norfolk,  and  the  com- 
mon recovery  suft'ered  by  the  duke,  are  of  no  use  at  all  in  this  case. 
For  if  this  limitation  to  Charles  be  good,  then  is  that  surrender  and 
the  recovery  a  breach  of  trust,  and  ought  to  be  set  aside  in  equity ;  so 
all  the  judges  that  assisted  at  the  hearing  of  this  cause  agreed:  if  the 
limitation  be  not  good,  then  there  was  no  need  at  all  of  a  surrender  to 
bar  it,  nor  of  the  common  recovery  to  extinguish  it. 

But  then  we  come  to  consider  the-  limitation,  and  there  it  is  agreed 
all  along  in  point  of  law,  that  the  measures  of  the  limitations  of  the 
trust  of  a  term,  and  the  measures  of  the  limitations  of  the  estate  of  the 
term,  are  all  one,  and  uniform  here,  and  in  other  cases,  and  there  is  no 
diffei"ence  at  chancery  or  at  common  law,  between  the  rules  of  the  one 
and  the  rules  of  the  other;  what  is  good  in  one  case,  is  good  in  the 
other.  And  therefore  in  this  case  the  court  is  agreed  to,  that  the  limi- 
tations  made  in  this  settlement  to  Edward,  &c.  are  all  void,  for  they 
tend  directly  and  plainly  to  perpetuities,  for  they  are  limitations  of  re- 
mainders of  a  term  in  gross  after  an  estate-tail  in  that  terno^  which 
commenceth  to  be  a  term  in  gross,  when  the  contingency  for  Charles 
happens. 

Thus  far  there  is  no  difference  of  opinion :  but  whether.the Jimita- 
tion  to  Charles,  if  Thomas  die  without  issue,  living  Henry,  whereby  the 
honor  of  the  earldom  of  Arundel  descends  upon  Henry ;  I  say,  whether 
that  be  "void  too,  is  the  great  question  of  this  case  wherein  we  differ  in 
our  opinions. 

It  is  said  that  is  void  too;  and  yet  (sever  it  from  the  authority  of 
Child  and  Bayly's  Case,  which  I  will  speak  to  by  and  by)  I  would  be 
glad  to  see  some  tolerable  reason  given  why  it  should  be  so ;  for  I  agree 
it  is  a  question  in  law  here  upon  a  trust,  as  it  would  be  elsewhere  upon 
an  estate ;  and  so  the  questions  here,  are  both  questions  of  law  and  eq- 
uity. It  was  well  said,  and  well  allowed  by  all  the  judges,  when  they 
did  allow  the  remainders  of  terms  after  estates-tail  in  those  terms  to  be 
void.  I  shall  not  devise  a  term  to  a  man  in  tail  with  remainders  over ; 
the  judges  have  admirably  well  resolved  in  it,  and  the  law  is  settled, 
(and  ^Matthew  Alanning's  Case  did  not  stretch  so  far)  because  this 
would  tend  to  a  perpetuity. 

Now,  on  the  other  side,  I  would  fain  know,  when  there  is  a  case  be- 
fore the  court,  where  the  limitation  doth  not  tend  to  a  perpetuity,  nor 
introduceth  any  visible  inconvenience,  what  should  hinder  that  from 
being  good :  for  though  if  there  be  a  tendency  to  a  perpetuity,  or  a 
visible  inconvenience,  that  shall  be  void  for  that  reason ;  yet  the  bare 


166  CLASSIFICATION   OF  FUTURE   INTERESTS  (Part   1 

limitation  of  the  remainder  after  an  estate-tail,  which  doth  not  tend  to 
a  perpetuity,  that  is  not  void.  Why?  because  it  is  not?  I  dare  not  say 
so :  see  then  the  reasons  why  it  is  so.  The  reasons  that  I  lie  under  the 
load  of,  and  cannot  shake  off,  are  these : — 

The  law  doth  in  many  cases  allow  of  a  future  contingent  estate  to  be 
limited,  where  it  will  not  allow  a  present  remainder  to  be  limited ;  and 
that  rule,  well  understood,  goeth  through  the  whole  case.  How  do  you 
make  that  out?  thus:  if  a  man  have  an  estate  limited  to  him,  his  heirs 
and  assigns  forever,  (which  is  a  fee^simple)  but  if  he  die  without  issue, 
living  J.  S.  or  in  such  a  short  time,  then  to  J.  D.  though  it  be  impossi- 
ble to  limit  a  remainder  of  a  fee  upon  a  fee,  yet  it  is  not  impossible  to 
limit  a  contingent  fee  upon  a  fee.  And  they  that  speak  against  this 
rule,  do  endeavor  as  much  as  they  can  to  set  aside  the  resolution  of 
Pell  and  Brown's  Case,  which  (under  favor)  was  not  the  first  case  that 
was  so  resolved ;  for,  as  I  said  before,  when  I  first  delivered  my  opin- 
ion, it  was  resolved  to  be  a  good  limitation.  10  Eliz.  in  the  case  of 
Hinde  and  Lyon,  3  Leonard,  64,  which  by  the  way  is  the  best  book  of 
reports  of  the  later  ones  that  hath  come  out  without  authority.  If  that 
be  so,  then  where  a  present  remainder  will  not  be  allowed,  a  contingent 
one  will.  If  a  lease  for  years  come  to  be  limited  in  tail,  the  law  allows 
not  a  present  remainder  to  be  limited  thereupon,  yet  it  will  allow  a  fu- 
ture estate  arising  upon  a  contingency  only,  and  that  to  wear  out  in  a 
short  time.  " 

But  what  time?  and  where  are  the  bounds  of  that  contingency?  you 
may  limit,  it  seems,  upon  a  contingency  to  happen  in  a  life :  what  if  it 
be  limited,  if  such  a  one  die  without  issue  within  twenty-one  years,  or 
one  hundred  years,  or  while  Westminster-Hall  stands  ?  where  will  you 
stop  if  you  do  not  stop  here  ?  I  will  tell  you  where  I  will  stop :  I  will 
stop  wherever  any  visible  inconvenience  doth  appear;  for  the  just 
bounds  of  a  fee-simple  upon  a  fee-simple  are  not  yet  determined,  but 
the  first  inconvenience  that  ariseth  upon  it  will  regulate  it. 

First  of  all,  then,  I  would  fain  have  any  one  answer  me,  where  there 
is  no  inconvenience  in  this  settlement,  no  tendency  to  a  perpetuity  in 
this  limitation,  and  no  rule  of  law  broken  by  the  conveyance,  what 
should  make  this  void?  and  no  man  can  say  that  it  doth  break  any 
rule  of  law,  unless  there  be  a  tendency  to  a  perpetuity,  or  a  palpable 
inconvenience.  Oh  yes,  terms  are  mere  chattels,  and  are  not  in  con- 
sideration of  law  so  great  as  freeholds,  or  inheritances.  These  are 
words,  and  but  words,  there  is  not  any  real  difference  at  all,  but  the 
reason  of  mankind  will  laugh  at  it:  shall  not  a  man  have  as  much 
^1  power  over  his  lease  as  he  has  over  his  inheritance?  if  he  have  not, 
he  shall  be  disabled  to  provide  for  the  contingencies  of  his  own  family 
that  are  within  his  view  and  prospect,  because  it  is  but  a  lease  for 
years,  and  not  an  inheritance  of  a  freehold.  There  is  that  absurdity  in 
it  which  is  to  me  insuperable,  nor  is  the  case  that  was  put,  answered  in 
any  degree.    A  man  that  hath  no  estate  but  what  consists  in  a  lease  for 


Ch.  8)  FUTURE    INTERESTS   IN   PERSONAL   PROPERTY  167 

years,  being  to  marry  his  son,  settled  this  lease  thus :  in  trust  for  him- 
self in  tail,  till  the  marriage  take  effect;  and  if  the  marriage  take  effect 
while  he  lives,  then  in  trust  for  the  married  couple ;  is  this  future  limi- 
tation to  the  married  couple  good  or  bad?  if  any  man  say  it  is  void,  he 
overthrows  I  know  not  how  many  marriage  settlements  :  if  he  say  it  is 
good,  why  is  not  a  future  estate  in  this  case  as  good  as  in  that,  when 
there  is  no  tendency  to  a  perpetuity,  no  visible  inconvenience? 

All  men  are  agreed,  (and  my  Lord  Chief  Justice  told  us  particularly 
how)  that  there  is  a  way  in  which  it  might  be  done,  only  they  do  not 
like  this  way ;  and  I  desire  no  better  argument  in  the  world  to  maintain 
my  opinion,  than  that ;  for,  says  my  Lord  Chief  Justice,  suppose  it  had 
not  been  said  thus ;  if  Thomas  die  without  issue,  living  Henry,  then 
over  to  Charles ;  but  thus,  if  it  happens  that  Thomas  die  without  issue 
in  the  life  of  Henry,  &c.  then  this  term  shall  cease,  and  there  shall  a 
new  term  arise  and  be  created  to  vest  in  Charles  in  tail,  and  that  had 
been  wonderful  well,  and  my  lord  of  Arundel's  intention  might  have 
taken  effect  for  the  younger  son.  This  is  such  a  subtilty  as  would  pose 
the  reason  of  all  mankind :  for  I  would  have  any  man  living  open 
my  understanding  so  far,  as  to  give  me  a  tolerable  reason  why  there 
may  not  be  as  well  a  new  springing  trust  upon  the  same  term  to  go  to 
Charles,  upon  that  contingency,  as  a  new  springing  lease  upon  the  same 
trust :  for  the  latter  doth  much  more  tend  to  a  perpetuity  than  the  for- 
mer doth,  I  am  bold  to  say  it. 

But  I  expect  to  hear  it  said  from  the  bar,  ajid  it  has  been  said  often, 
the  case  of  Child  and  Bayly  is  a  great  authority;  so  it  is.  But  this  I 
have  to  say  to  it,  first,  the  point  resolved  in  Qiild  and  Bayly's  Case 
was  never  so  resolved  before,  nor  ever  w'as  there  such  a  resolution 
since.  Pell  and  Brown's  Case  was  otherwise  resolved,  and  has  often 
been  adjudged  so  since.  In  the  next  place,  I  will  not  take  much  pains 
to  distinguish  Child  and  Bayly's  Case  from  this,  though  the  word  (as- 
signs) and  the  grant  of  the  remainder  by  the  mother,  who  was  execu- 
trix, are  things  that  Rolls  lays  hold  on  as  reasons  for  the  judgment. 
But  I  know  not  why  I  may  not,  with  reverence  to  the  authority  of  that 
case,  and  the  learning  of  those  that  adjudged  it,  take  the  same  libert}^ 
as  the  judges  in  \\'estminster-Hall  sometimes  do,  to  deny  a  case  that 
stands  single  and  alone  of  itself.  And  I  am  of  opinion  the  resolution 
in  that  case  is  not  law,  though  there  it  came  to  be  resolved  upon  xtry 
strange  circumstances  to  support  such  a  resolution ;  for  the  remainder 
of  a  term  of  seventy-six  years  is  called  in  question  when  but  fifteen 
years  of  it  remained,  and  after  the  possession  had  shifted  hands  sev- 
eral times,  and  therefore  I  do  not  wonder  that  the  consideration  of 
equity  swayed  that  case. 

But  I  put  it  upon  this  point ;  pray  consider,  there  is  nothing  in  Child 
and  Bayly's  Case  that  doth  tend  to  a  perpetuity,  nor  anything  in  the 
settlement  of  the  estate  there,  that  could  be  called  an  inconvenience, 
nor  any  rule  of  law  broken  by  the  conveyance;  but  it  is  absolutely  a 


168  CLASSIFICATION   OF  FUTURE   INTERESTS  (Part  1 

resolution  quia  volumus.  For  it  disagrees  with  all  the  other  cases  be- 
fore and  since ;  all  which  have  been  otherwise  resolved ;  but  it  is  a  res- 
olution, I  say,  merely  because  it  is  a  resolution.  And  it  is  expressly 
contrary  to  Wood  and  Saunder's  Case,  which  no  art  or  reason  can  dis- 
tinguish from  our  case  or  that.  For  here  was  that  case  which  was 
clipped  and  minced  at  the  bar,  but  never  answered.  Wood  and  Saun- 
der's Case  is  this :  to  the  husband  for  sixty  years,  if  he  lived  so  long ; 
to  the  wife  for  sixty  years,  if  she  lived  so  long;  then  if  John  be  living 
at  the  time  of  the  death  of  the  father  and  mother,  then  to  John ;  but 
if  he  die  without  issue,  living  father  or  mother,  then  to  Edward.  Sup- 
pose these  words  (living  father  or  mother)  had  been  out  of  the  case, 
and  it  had  been  to  John,  and  if  he  die  without  issue,  to  Edward,  will 
any  man  doubt,  but  then  the  remainder  over  had  been  void,  because  it 
is  a  limitation  after  an  express  entail?  How  came  it  then  to  be  ad- 
judged good !  because  it  was  a  remainder  upon  a  contingency,  that  was 
to  happen  during  two  lives,  which  was  but  a  short  contingency,  and 
the  law  might  very  well  expect  the  happening  of  it?  Now,  that  is  this 
case;  nay,  ours  is  much  stronger:  for  here  it  is  only  during  one  life, 
there  were  two.  , 

The  case  of  Cotton  and  Heath  in  Rolls  comes  up  to  this ;  a  term  is 
devised  to  A.  for  eighteen  5^ears ;  the  remainder  to  B.  for  life,  the  re- 
mainder to  the  first  issue  male  of  B.  which  is  a  contingent  estate  after 
a  contingency,  and  yet  adjudged  good,  because  the  happening  of  the 
contingency  was  to  be  expected  in  so  short  a  time.  Now  that  case  was 
adjudged  by  my  Lord  Keeper  Coventry,  Mr.  Justice  Jones,  Mr.  Justice 
Crook,  and  Mr.  Justice  Berkley,  as  Wood  and  Saunder's  Case  was  by 
my  Lord  Keeper  Bridgeman,  Mr.  Justice  Twisden,  and  Mr.  Justice 
Rainsford;  so  that  however  I  may  seem  to  be  single  in  my  opinion, 
having  the  misfortune  to  differ  from  the  three  learned  judges  who  as- 
sisted me,  yet  I  take  myself  to  be  supported  by  seven  opinions  in  these 
two  cases  I  have  cited. 

If  then  this  be  so,  that  here  is  a  conveyance  made  which  breaks  no 
rules  of  law,  introduceth  no  visible  inconvenience,  savors  not  of  perpe- 
tuity, tends  to  no  ill  example,  why  this  should  be  void  only,  because  it 
is  a  lease  for  years,  there  is  no  sense  in  that. 

Now  if  Charles  Howard's  estate  be  good  in  law,  it  is  ten  times  bet- 
ter in  equity.  For  it  is  worth  the  considering,  that  this  limitation  upon 
this  contingency  happening,  (as  it  hath,  God  be  thanked)  was  the  con- 
siderate desire  of  the  family,  the  circumstances  whereof  required  con- 
sideration, and  this  settlement  was  the  result  of  it,  made  with  the  best 
advice  they  could  procure,  and  is  as  prudent  a  provision  as  could  be 
made.  For  the  son  now  to  tell  his  father  that  the  provision  that  he  had 
made  for  his  younger  brother  is  void,  is  hard  in  any  case  at  law ;  but  it 
is  much  harder  in  chancery,  for  there  no  conveyance  is  ever  to  be  set 
aside,  where  it  can  be  supported  by  a  reasonable  construction,  and  here 
must  be  an  unreasonable  one  to  overthrow  it. 


Ch.  8)  FUTURE   INTERESTS   IN   PERSONAL  PROPERTY  169 

I  take  it  then  to  be  good  both  in  law  and  equity ;  and  if  I  could  alter 
my  opinion,  I  would  not  be  ashamed  to  retract  it;  for  I_ani__as_other 
men  are,  and  have  my  partialities  as  other  men  have.  When  all  this  is 
done,  1  am  at  the  bar  desired  to  consider  further  of  this  case :  I  would 
do  so,  if  I  could  justify  it;  but  expedition  is  ^s  much  the  rig^htjof  the 
subject,  as  justice  is,  and  I  am  bound  by  ^lagna  Chai^tjij  nulH  negar<; 
nulii^difTerre  justitiam!  TTiave  taken  as  much  pains  and  time  as  I 
could  to  be  informed;  I  cannot  help  it  if  wiser  men  than  I  be  of  an- 
other opinion ;  but  every  man  must  be  saved  by  his  own  faith,  and  I 
must  discharge  my  own  conscience. 

I  have  made  several  decrees  since  I  have  had  the  honor  to  sit  in  this 
place,  which  have  been  reversed  in  another  place,  and  yet  I  was  not 
ashamed  to  make  them,  nor  sorry  when  they  were  reversed  by  others. 
And  I  assure  you,  I  shall  not  be  sorry  if  this  decree  which  I  do  make 
in  this  case  be  reversed  too ;  yet  I  am  obliged  to  pronounce  it,  by  my 
oath  and  by  my  conscience.  For  I  cannot  adjourn  a  case  for  difficulty 
out  of  an  English  court  of  equity  into  the  parliament ;  there  never  was 
an  adjournment  propter  difficultatem,  but  out  of  a  court  of  law  where 
the  proceedings  are  in  Latin.  The  proceedings  here  upon  record  are  in 
English,  and  can  in  no  way  now  come  into  parliament,  but  by  way  of 
appeal,  to  redress  the  error  in  the  decree.  I  know  I  am  very  likely  to 
err,  for  I  pretend  not  to  be  infallible ;  but  that  is  a  thing  I  cannot  help. 
Upon  the  whole  matter,  I  am  under  a  constraint,  and  under  an  obliga- 
tion which  I  cannot  resist.  A  man  behaves  himself  very  ill  in  such  a 
place  as  this,  that  he  needs  to  make  apologies  for  what  he  does ;  I  will 
not  do  it.  I  must  decree  for  the  plaintiff  in  this  case,  and  my  decree  is 
this. 

That  the  plaintiff  shall  enjoy  this  barony  for  the  residue  of  the  term 
of  two  hundred  years ;  the  defendant  shall  make  him  a  conveyance  ac- 
cordingly, because  he  extinguished  the  trust  in  the  other,  and  the  term 
contrary  to  both  law  and  reason,  by  the  merger  and  surrender,  and 
common  recovery.  And  that  the  defendants  do  account  with  the  plain- 
tiff for  the  profits  of  the  premises  by  them  or  any  of  them  received 
since  the  death  of  the  said  Duke  Thomas,  and  which  they  or  any  of 
them  might  have  received  without  wilful  default;  and  that  it  be  refer- 
red to  Sir  Lacon  William  Child,  Knight,  one  of  the  masters  of  the 
court,  to  take  the  said  account,  and  to  make  unto  the  defendants  all 
just  allowances ;  and  what  the  said  master  shall  certify  due,  the  said 
defendants  are  to  pay  unto  the  plaintiffs,  according  to  the  master's  re- 
port herein  to  be  made:  and  that  the  defendants  shall  forthwith  de- 
liver the  possession  of  the  premises  to  the  plaintiff,  and  that  the  plain- 
tiff shall  hold  and  enjoy  the  said  Barony  of  Grostock,  with  the  lands 
and  tenements  thereunto  belonging,  for  the  residue  of  the  said  term 
of  two  hundred  years,  against  the  defendants,  and  all  claiming  by, 
from,  or  under  them.  And  it  is  further  ordered  and  decreed,  that  the 
said  defendants  do  seal  and  execute  such  a  conveyance  of  the  said  term 


170  CLASSIFICATION   OF  FUTURE   INTERESTS  (Part  1 

to  the  plaintiff  as  the  master  shall  approve  of,  in  case  the  parties  can- 
not agree  to  the  same;  but  the  defendants  are  not  to  pay  any  costs  of 
the  suit.* 


EYRES  V.  FAULKLAND. 

(Court  of  Common  Bench,  1697.     1  Salk.  231.) 

H.  possessed  of  a  term  for  ninety-nine  years  devised  his  term  to  A. 
for  life,  and  so  on  to  B.  and  live  others  successively  for  life;  all  seven 
being  now  dead,  the  question  was.  Who  should  have  the  residue  of  the 
term?  Et  per  TrEby  and  Powell:  Anciently,  if  one  having  a  term 
devised  to  A.  for  life,  remainder  to  B.,  such  remainder  was  void :  1st. 
Because  an  estate  for  life  is  a  greater  estate;  and,  2dly,  Because  the 
term  included  the  whole  interest,  so  that  when  he  devised  his  term, 
nothing  remained  to  limit  over.  Afterwards  the  law  altered ;  for  a  de- 
vise of  the  term  to  B.,  after  the  death  of  A.,  was  held  good;  and  by 
the  same  reason  to  A.  for  life,  remainder  to  B.,  for  it  was  but  dis- 
posing of  the  interest  in  the  mean  time ;  but  a  devise  to  A.  in  tail,  re- 
mainder over,  is  too  remote ;  so  if  it  be  to  A.,  and  if  he  die  without  is- 
sue, remainder  over.  As  to  the  principal  case,  they  held  that  all  the 
remainders  were  good ;  and  that  the  first  devisee,  and  so  every  devisee 
in  his  turn,  had  the  whole  term  vested  in  him ;  during  which  the  next 
man  in  remainder,  and  so  every  other  after  him,  had  not  an  actual  re- 
mainder, but  a  possibility  of  re^mainder,  and  the  executor  of  the  de- 
visor a  possibility  of  reverter;  for  there  may  be  a  possibility  of  re- 
verter, even  where  no  remainder  can  be  limited,  as  in  the  case  of  a 
gift  to  A.  and  his  heirs  while  such  a  tree  stands :  No  remainder  can 
be  limited  over,  and  yet  clearly  the  donor  has  a  possibility  of  reverter, 
though  no  actual  reversion;  a  fortiori,  there  shall  be  a  possibility  of 
reverter,  where  a  remainder  may  be  limited  over ;  f oi  the  testator  gave 
but  a  limited  estate,  and  what  he  has  not  given  away  must  remain  in 
him;  and  the  words  for  life  can  be  no  more  rejected  in  the  last  limita- 
tion than  in  the  first. 

*  This  decree  of  Lord  Chancellor  Nottingham  was  reversed  on  bill  of  re- 
view by  Ix)rd  Keeper  North,  May  15,  1683 ;  but,  on  appeal  to  the  House  of 
Lords,  the  decree  of  the  Lord  Keeper  was,  June  19,  1685,  reversed,  and  the 
decree  of  the  Lord  Chancellor  affirmed.    3  Ch.  Cas.  53,  54. 


Ch,  8)  FUTURE  INTERESTS   IN   PERSONAL  PROPERTY  171 


SECTION  2.— PERSONAL  PROPERTY  OTHER  THAN 
CHATTELS  REAL 


HIDE  V.  PARR  AT. 
(Court  of  Chancery,  1696.    2  Vern.  331.) 

The  plaintiff,  Hide's  father,  devised  the  goods  in  his  house  at  Hod- 
desden  in  these  words,  "I  give  and  bequeath  unto  my  wife  all  my  house- 
hold goods  that  are  in  my  dwelling-house  at  Hoddesden,  in  the  parish  of 
]\Iuch-Amwell,  during  her  natural  life:  and  after  her  decease  I  give 
and  bequeath  my  said  household  goods  unto  my  son  Joseph  forever." 
The  question  was,  whether  the  devise  over  of  these  personal  chattels  (as 
the  will  was  worded)  was  good  or  not. 

It  was  insisted  by  the  defendant's  counsel  that  the  devise  over  was 
void,  and  relied  on  the  dift'erence  taken  in  the  books,  where  the  thing 
itself  was  devised,  as  in  this  case  the  goods  were  devised,  the  devise 
over  was  void ;  but  where  only  the  use  of  them  is  devised  to  one  for 
life,  it  is  otherwise ;  and  for  that  purpose  cited  the  case  Z7  H.  6,  30, 
Brook's  Abridgment,  tit.  Devise,  Plowden's  Commentaries,  521  b, 
Owen's  Reports,  Z2>,  and  March's  Reports,  106,  where  a  prohibition 
was  granted  out  of  the  Court  of  Common  Pleas  to  the  Court  of  the 
IMarches  of  Wales  for  proceeding  for  the  devise  over  of  a  personal 
chattel. 

For  the  plaintiff  it  was  answered  that  all  these  authorities  cited  were 
built  upon  the  case  37  H.  6,  but  of  latter  times  it  had  been  otherwise 
resolved  upon  great  debate,  and  instanced  in  the  case  of  Lord  Ferrars. 
Hart  and  Say,  and  A'achel  and  Vachel,  1  Ca.  in  Ch.  129,  &c.,  and 
that  in  the  present  case,  the  same  arising  upon  a  will,  a  construction 
(as  far  as  the  law  will  admit)  is  to  be  made,  that  the  intention  of  the 
testator  may  take  place.  And  therefore  if  a  man  possessed  of  a  term 
for  years  grants  the  term  to  one  for  life,  the  remainder  over,  the  re- 
mainder over  is  void;  but  in  the  case  of  a  will,  or  of  an  assignment  by 
way  of  trust,  there  the  remainder  over  is  good. 

The  Lord  Keeper  [Sir  John  Somers]  held  that  the  devise  over  was 
good,  for  as  to  the  personal  chattels,  the  civil  and  canon  law  is  to  be 
considered,  and  there  the  rule  is,  where  personal  chattels  are  devised  for 
a  limited  time,  it  shall  be  intended  the  use  of  them  only,  and  not  the 
devise  of  the  thing  itself,  and  therefore  allowed  the  remainder  over  to 
be  good.* 

4  S.  C.  1  P.  Wms.  1. 

"J.  S.  deviseth  £500  to  his  danehter,  and  if  she  die  before  thirty  years  of 
age  unmarried,  then  to  he  divided  between  three;  she  does  receive  the  money, 
and  dies  lieforc  that  time.  And  resolved  that  the  money  should  be  divided,  and 
her  execiitor  charireable.  as  imssessed  in  trust  for  the  devisees  in  remainder." 
Anon.,  Freem.  Ch.  137,  pi.  172. 


172  CLASSIFICATION   OF  FUTURE   INTERESTS  (Part  1 

HOARE  V.  PARKER. 
(Court  of  King's   Bench,  178S.    2  Term  R.  376.) 

Trover  for  plate  by  the  plaintiffs,  who  claimed  under  a  remainder- 
man, against  the  defendant,  to  whom  it  was  pawned  by  the  tenant  for 
life.  Admiral  Stewart  by  will  gave  his  plate  to  trustees  for  the  use  of 
his  wife  durante  viduitate,  requiring  her  to  sign  an  inventory,  which 
she  did  at  the  time  the  plate  was  delivered  into  her  possession.  She 
afterwards  pawned  it  with  the  defendant  for  a  valuable  consideration, 
who  had  no  notice  of  the  settlement;  and  before  the  commencement  of 
this  action  she  died.  A  demand  and  refusal  was  proved.  A  special 
case  was  reserved  before  Buller,  J.,  at  the  last  sittings  at  Westminster, 
stating  these  facts ;  and  the  question  was,  Whether  the  defendant  were 
bound  to  deliver  up  the  plate  without  being  paid  the  money  he  had  ad- 
vanced on  it? 

Baldwin,  for  the  defendant,  declared  that  he  could  not  argue  against 
so  established  a  point. 

Gibbs,  for  the  plaintiff. 

Per  Curiam.  This  point  is  clearly  established,  and  the  law  must 
remain  as  it  is  till  the  legislature  think  fit  to  provide  that  the  possession 
of  such  chattels  shall  be  a  proof  of  ownership. 

Postea  to  the  plaintiffs. 


EVANS  V.  WALKER. 

(Chancery  Division,  1876.    3  Ch.  Div.  211.) 

John  Brown,  by  his  will,  dated  the  13th  of  February,  1812,  made 
the  following  disposition  of  his  property:  "I  give  and  bequeath  unto 
Maria  Evans  £50  per  annum  from  the  day  of  my  decease  during  the 
term  of  her  natural  life,  and  from  and  after  her  decease  to  the  children 
she  may  have  born  in  wedlock,  equally  to  be  divided  between  them, 
share  and  share  alike,  during  their  natural  lives,  the  said  annuity  to  be 
paid  half-yearly;  and  from  and  after  the  decease  of  the  survivors 
herein  named  to  go  to  my  nephew  Edwin  Walker,  and  my  two  nieces, 
Sally  Brown  Walker  and  Eliza  Walker,  equally  between  them,  and  I 
hereby  desire  that  my  nephew  and  nieces  will  see  it  fulfilled.  I  declare 
this  my  last  will  and  testament." 

This  suit  was  instituted  in  1816  for  the  purpose  of  having  a  sum  of 
money  set  apart  out  of  the  estate  of  the  testator  to  answer  the  annuity 
of  i50,  and  a  sum  of  £1666  13s.  4d.  was  accordingly  paid  into  court 
for  that  purpose.  Maria  Evans  died  without  having  been  married,  in 
1874.  The  nephew  and  two  nieces  of  the  testator  died  some  time  since, 
and  a  petition  was  now  presented  by  their  legal  personal  representatives 
to  have  the  money  paid  out  of  court  to  them  in  equal  shares. 

Malins,  V.  C.     The  first  point  is,  whether  the  gift  to  the  nephew 


Ch.  8)  FUTURE   INTERESTS   IN  PERSONAL  PROPERTY  173 

and  two  nieces  of  the  testator  is  void  for  remoteness,  and  it  is  quite 
clear  to  my  mind  that  it  is  not,  because  there  is  no  objection  to  a  gift 
to  unborn  children  for  life,  and  then  to  an  ascertained  person,  provided 
the  vesting  is  not  postponed.  That  point  I  commented  upon  in  Stuart 
V.  Cockerell,  Law  Rep.  7  Eq.  363.  Property  may  be  given  by  will  or 
secured  by  settlement  to  an  unborn  person  for  life,  or  to  several  unborn 
persons  successively  for  life,  with  remainders  over,  provided  that  the 
vesting  of  the  remainders,  or  the  ascertainment  of  those  who  are  to 
take  in  remainder,  be  not  postponed  till  after  the  death  of  such  unborn 
person  or  persons.  Therefore  the  circumstance  of  there  being  life  es- 
tates given  to  all  the  children  unborn  of  Maria  Evans  does  not  create  a 
perpetuity  if  there  are  persons  capable  of  taking  immediately,  and 
here  there  are  such  persons.  So  they  take  immediate  vested  interests. ° 
[The  court  then  decided  that  the  gift  after  the  decease  of  the  sur- 
vivors of  INIaria  Evans'  children,  "to  my  nephew  Edwin  Walker,  and 
my  two  nieces  Sally  Brown  Walker  and  Elizabeth  Walker,  equally  be- 
tween them,"  gave  to  each  an  absolute  interest.  The  balance  of  the 
opinion  on  this  point  is  omitted.] 


In  re  TRITTON. 

Ex  parte  SIXGLETON. 

(High  Court  of  Justice.  18S9.     6  Morrell's  Bankruptcy  Cases,  250.) 

This  was  an  application  on  behalf  of  the  trustee  in  the  bankruptcy 
for  an  order  declaring  that  he  was  entitled  to  certain  pictures  bequeath- 
ed to  the  bankrupt  by  his  father  subject  to  the  life  interest  of  the  bank- 
rupt's mother. 

The  case  was  taken  specially  on  the  ground  of  urgency,  before  Mr. 
Justice  Wills,  sitting  for  the  Bankruptcy  Judge  during  the  absence  of 
Mr.  Justice  Cave  on  circuit. 

The  father  of  the  bankrupt  by  his  will  gave  and  bequeathed  to  his 
wife  Elizabeth  Ann  Tritton  for  her  own  absolute  use  and  benefit  cer- 
tain watches,  jewelr}^,  trinkets,  &c.,  and  the  wall  continued:  "I  also 
give  to  my  said  wafe  the  right  of  possession  and  enjoyment  of  all  my 
pictures  during  her  life  (if  she  shall  so  desire),  and,  subject  as  afore- 
said, I  give  and  bequeath  all  my  said  pictures  to  and  for  my  son,  H%  J. 
Tritton,  for  his  own  absolute  use  and  benefit." 

The  testator  died,  and  Mrs.  Tritton,  who  is  still  alive,  retained  pos- 
session of  the  pictures  under  the  right  so  given  to  her. 

On  March  2Sth,  1884,  H.  J.  Tritton  executed  an  assignment  in  favor 
of  one  Raymond  by  way  of  security  for  an  advance  of  £2,500,  by  which 
as  mortgagor  and  beneficial  owner  he  assigned  inter  alia,  "All  that  the 
share  and  interest  of  him  the  said  H.  J.  Tritton  under  the  will  and 

6 Accord:  Seaver  v.  Fitzgerald,  141  Mass.  401,  6  N.  E.  73, 


174 


CLASSIFICATION   OF   FUTURE   INTERESTS 


(Part  1 


codicil  of  his  father,  Henry  Tritton,  deceased,  and  of  and  in  the  sums 
of  money,  hereditaments,  and  premises,  devised  and  bequeathed  there- 
by expectant  upon  the  decease  of  his  mother,  EHzabeth  Ann  Tritton." 

On  April  26th,  1888,  a  receiving  order  was  made  against  H.  J.  Trit- 
ton, upon  which  he  was  adjudicated  bankrupt,  and  the  pictures  were 
now  claimed  by  the  trustee  subject  to  the  life  interest  of  Mrs.  Tritton, 
on  the  ground  that  the  assignment  in  question  required  to  be  registered 
as  a  bill  of  sale. 

Wills,  J.  I  wish  to  preface  my  judgment  with  a  short  statement 
why  I  allowed  this  case  to  be  taken  as  urgent  at  this  time,  and  when 
the  state  of  business  is  in  the  condition  in  which  it  is  owing  to  nearly 
all  the  judges  being  away  from  London.  I  do  not  want  there  to  be  any 
risk  of  the  opinion  going  abroad  that  I  am  willing  always  to  certify  a 
case  as  urgent  if  I  am  asked  to  do  so.  From  what  was  represented  to 
me  there  is  urgency  here,  because  an  offer  has  been  made  to  the  trus- 
tee for  the  purchase  of  these  pictures,  which  offer  is  only  open  until 
September,  and  the  question  therefore  had  to  be  settled.  That  appear- 
ed to  be  a  reason  why  I  should  hear  the  case  at  this  exceptional  time. 

Now  having  said  that,  I  must  say  that  notwithstanding  the  discus- 
sion as  to  the  difficulty  of  the  present  case,  I  do  not  entertain  any 
doubt  as  to  which  way  my  judgment  should  go,  and  so  I  will  give  judg- 
ment at  once.  In  my  opinion  the  case  of  the  trustee  fails,  and  it  fails 
upon  the  short  ground  that  the  only  interest  which  Tritton,  the  bank- 
rupt, had  in  these  pictures  was  a  chose-in-action,  and  therefore  ex- 
pressly excepted  from  the  Bills  of  Sale  Acts  by  section  4  of  the  Act  of 
1878.  It  seems  to  me  clear  upon  the  authorities  that  you  cannot  hal/fc 
1ife_estates  and  rpin.ilnriPi::^_QUt-o£-fiej:§onal  chattels,  and  that  tlieTnteK 
est  whicli,thi.sUady_took^s_definjle_ajid^  first,  and  entitles  her 

to__t^eenjoynif^^  ^nH  pn-^sp^'^inn  of  thpt;p  thinii^^thatTsTTo  the^prop- 
ert^^in  these  things  during  her  lifetime.  It  seems  to~meThnfTh]^mter- 
est  of_the  son  w^'^  an  pvfrntory  bequest,  which  creates  no  present  or 
vested  interest,  and  which,  if  the  mother  survived  him,  Avould  never 
come  info^operation.  In  my  opinion  ir~is~nearly_in  tHe~natiire  of  a 
chose-in-action — or  I  w^ill  say  it  is,.ajchosejjii2acHonr^and_nothing  high- 
er,  an5^xpressly_excepted  from  th£-Operationof  the  BilIs~o"f  Sale  Act. 
I  found  my  judgment  on  that,  and  I  do  not  tliuik  it  necessary  to  travel 
further  into  the  thorny  paths  of  the  law  relating  to  Bills  of  Sale, 
which  has  already  given  rise  to  many  difficulties.  The  motion  must  be 
refused,  and  the  trustee  must  pay  the  costs,  but  he  may  recoup  himself 
out  of  the  estate  if  there  is  any. 

Application  refused. 


Ch.  8)  FUTURE  INTERESTS  IN  PERSONAL  PROPERTY  175 

ANONYMOUS. 
(Superior  Court  of  North  Carolina,  1802.     3  N.  C.  161.) 

Testator  had  devised  a  ncgro_to  his  wife  and  also  lands  for  life; 
and  the  executors  of  the  testator  siied^forlTie  negro. 

Johnston,  Ju^ge.  The  words  "and  also"  continue  the  clause,  and 
the  words  "for  life"  refer  to  all  that  precedes.  She  had  an  interest  for 
life  in  the  negro  as  well  as  in  the  lands,  and  there  remained  a^reversion 
which  vested  in  the  executors;  and  although  the  next  of  kin  may  be 
entitled  to  it,  yet  the  executors  must  distribute  it,  and  must  recover  in 
the  first  instance,  in  order  to  that  distribution. 

Judgment  accordingly.® 


DUKE  V.  DYCHES. 
(Court  of  Appeals  of  South  Carolina,  1829.    2  Strob.  Eq.  3.j3,  note.) 

Moses  Duke,  the  plaintiff's  testator,  in  his  lifetime  made  a  deed  of 
gift  of  certain  negro  slaves  to  Esther  Benson,  his  illegitimate  daughter, 
nmv  fhe'w^ife  of  the  defendant,  rese'rvmg  a  life  estate  to  himself. 
After  his  death  the  defendant  took  possesslorrbf  the  negroes.  An  ac- 
tion was  brought  for  tlieir  recovery  by  the  executors,  and  a  nonsuit  or- 
dered on  circuit,  on  the  ground  that  the  plaintiffs  showed  no  title  in 
themselves.  The  case  was  heard,  on  appeal  from  this  order,  at  Colum- 
bia, December  Sittings,  1829,  and  the  following  is  the  opinion  of  the 
Court  of  Appeals : 

NoTT,  J.  Moses  Duke,  the  plaintiff's  testator,  in  his  lifetime  made 
a  deed  of  gift  of  the  negroes  in  question  to  Esther  Benson,  his  illegiti- 
mate daughter,  now  the  wife  of  the  defendant,  reserving  a  life  estate 
to  himself.  After  his  death  the  defendant  took  possession  of  the  ne- 
groes.   The  copy  of  the  deed  of  gift  is  as  follows : 

"To  all  to  whom  these  presents  shall  come,  I,  Moses  Duke,  do  send 
greeting.  Know  ye  that  I,  the  said  Moses  Duke,  of  Barnwell  District, 
in  the  State  of  South  Carolina,  for  and  in  consideration  of  the  love, 
good  will  and  affection  which  I  have  and  do  bear  towards  my  loving 
daughter,  Esther  Benson,  of  the  same  place,  have  given  and  granted, 
and  by  these  presents  do  freely  give  and  grant,  unto  the  said  Esther 
Benson,  her  heirs,  executors  and  administrators,  one  certain  negro  boy 
slave  named  Arthur,  and  one  negro  girl  slave  named  Jane,  to  be  and 
remain  as  her  proper  right  and  property  after  the  death  of  the  said 
Moses  Duke,  or  at  any  time  previous  thereto,  if  the  said  Duke  shall 
think  fit  to  do  so.  But  it  is  the  true  intent  and  meaning  of  the  said 
Moses  Duke  that  if  the  said  Esther  Benson  shall  die  without  lawful 

«  Accord:  Boyd  v.  Strahan,  36  111.  355.  See,  also,  Gray,  Rule  against  Perp. 
(2d  Ed.)  §§  97,  852.  State  v.  Savin,  4  Har.  (Del.)  56,  note ;  Merkel's  Appeal, 
109  Pa.  235.  are  contra. 


176  CLASSIFICATION   OF  FUTURE   INTERESTS  (Part  1 

issue,  then  the  said  negroes,  viz. :  Arthur  and  Jane,  shall  go  to  the 
lawful  heirs  of  the  said  Moses  Duke,  to  be  and  become  thereafter  the 
rightful  property  of  his  said  heirs,  in  as  full  and  ample  manner  as  if 
this  present  deed  had  never  been  made  or  given.  And  the  said  Esther 
Benson  the  said  property  shall  and  may  hold,  upon  the  terms  and  con- 
ditions above  mentioned,  as  her  proper  goods  and  chattels,  without  any 
sort  of  reserve  whatever.  Witness  my  hand  and  seal  this  4th  day  of 
August,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  four, 
and  in  the  29th  year  of  American  Independence. 

"Moses  Duke.     [L.  S.] 
"Signed,  sealed  and  delivered  in  the  presence  of 
J.  Hughes  and  Micajah  Hughes." 

And  the  only  question  now  submitted  to  us  is  whether  pergonal 
property  can  be  limited  oyerjby  deed  to  take  effect  after  the  termination 
of~aniTe~estate.  1  Fearn.  26;  1  Mad.  Ch.  2237  It^was  formerly  held 
that  no  such  limitation  could  be  made,  either  by  deed  or  will;  but  a 
gift  for  life,  or  even  for  a  day,  carried  the  whole  estate.  Fearn.,  supra ; 
1  Pr.  Wms.  1,  Hyde  v.  Parrot  et  al. ;  do.  500,  Tessin  v.  Tessin;  do.  651, 
Upwal  V.  Halsy.  The  first  deviation  from  that  rule  was  by  way  of  dis- 
tinction between  the  gift  of  the  use  of  a  thing,  and  a  gift  of  the  thing 
itself.  Since  those  decisions  the  distinction  between  the  use  and^the 
thing  itself  has  been  laid  aside,~an^~argift  of  the  chattelltself,  for  life, 
is  considered  as^^~gift  oi_the  use  only]  Fl^earn.  241.  But  it  is  cqn- 
tended"  that  |hpse_decisions  apply  only  to,  executory  bequests  by  will, 
or  to  trusts,  and  not  to  cases  where  the  property^  is  given  immediately 
by  deed!  And  i  do  not  know  that  such  aTTimitation  by  deed  has  ever 
been  held  good  in  England ;  neither  do  I  recollect  any  modem  decision 
where  the  contrary  has  been  held.  And  it  now  remains  for  this  court 
to  decide  whether  that  distinction,  between  deeds  and  wills,  is  still  to  be 
maintained,  or  whether  it  is  now  time  to  lay  aside  that  distinction  also, 
or  rather  whether  any  such  distinction  has  ever  prevailed  in  this  State. 
And  I  would  here  remark  that  the  invasion  of  the  common  law  prin- 
ciple, in  England,  has  not  been  by  legislative  authority,  but  by  the 
courts  alone.  And  if  a  gift  by  will  for  life  conveys  nothing  but  the 
use,  why  may  not  the  same  words  in  a  deed  have  the  same  operation? 
If  the  courts  have  the  power  in  one  case  to  effect  such  a  change,  as 
being  more  consistent  with  reason  and  common-sense,  and  more  con- 
sistent with  the  intention  of  the  party,  why  may  they  not  in  the  other? 
I  am  not,  how^ever,  friendly  to  that  kind  of  judicial  legislation  v/hich 
authorizes  judges  to  innovate  upon  an  established  rule  of  law  because 
they  think  it  is  time  that  it  should  be  changed.  And  if  I  found  the  cur- 
rent of  decisions  running  against  the  principle  which  I  am  advocating, 
I  should  feel  bound  to  go  with  them.  But  I  have  already  remarked 
that  it  is  a  subject  on  which  the  late  English  authorities  are  almost 
silent,  and  on  which  I  think  I  shall  be  able  to  show  that  I  am  well  sup- 
ported by  the  decisions  of  our  own  courts.  I  mean,  however,  to  con- 
fine my  remarks  exclusively  to  the  species  of  property  nowMinder  cor> 


Ch.  8)  FUTURE    INTERESTS   IN  PERSONAL  PROPERTY  177 

sideration.  For  although,  by  our  law,  slaves  are  considered  as  personal 
estate,  yet  we  have,  in  various  respeCTs.  made  a  distinction  beTw^n 
that  species  of  property  and  other  personal  chattels.  The  limitation 
over^of  a  f eniale^lave  has  1)eenlietJ  to'cafry  with  it  a  limitation  over 
of  the  offspring  born  during  the  life  estate,  which  is  not  the  case  with 
any  other  animal.  The  conversion  of  a  female  slave  to  the  use  of  a 
person,  renders  the  party  liable  for  damages,  to  the  amount  of  the 
value  of  the  issue,  born  during  the  time  of  the  possession,  as  well  as  the 
value  of  the  mother,  contrar}'  to  the  rule  in  case  of  female  brutes. 

And  in  the  case  of  Geiger  v.  Brown,  2  Strob.  Eq.  359  note,  decided 
at  our  last  court,  we  held  that  a  bequest  of  a  female  slave  for  life,  with- 
out any  limitation  over,  carried  only  a  life  estate,  and  that  the  slave  and 
her  issue,  at  the  termination  of  the  life  estate,  were  unbequeathed  as- 
sets in  the  hands  of  the  legal  representatives,  for  which  the  administra- 
tors might  maintain  an  action.  We  have  thus  given  to  this  kind  of 
property  attributes  of  realty  which  do  not  belong  to  other  personal 
chattels.  And  to  hold  it  not  capable  of  limitation  over  after  a  life_es- 
tate,  would  be  inconsistent  with  the  character  which  has  been  ascribed 
to  TTBy^The  whole  current  "of^ouF  decisions^  But  the^uestion  is  "not 
left~to  interence^  it  is  supported  by  the~^xpress  opinions  and  direct 
decisions  of  our  courts.  In  the  case  of  Dott  v.  Cunnington,  1  Bay,  453, 
1  Am.  Dec.  624,  it  is  said,  "It  cannot  be  denied  that  in  many  cases  per- 
sonal chattels  or  terms  for  years,  may  be  limited  over,  either  by  execu- 
tory devises,  or  deeds,  as  effectually  as  real  estate,  if  it  is  not  attempted 
to  render  them  unalienable  beyond  the  duration  of  lives  (in  being),  or 
twenty-one  years  after  (see  page  456).  And  although  in  that  case  it 
was  held,  that  the  property  vested  in  the  first  taker,  yet  it  was  on  the 
ground  that  the  limitation  was  too  remote,  and  not  that  a  limitation 
over  after  a  life  estate,  was  not  good.  On  the  contrary,  throughout  the 
whole  argument  of  the  court  it  is  manifest  the  limitation  over  would 
have  been  supported,  if  it  had  not  gone  so  far  as  to  create  a  perpetuity. 
In  the  case  of  Stockton  v.  Martin,  2  Bay,  471,  similar  language  is  used. 
And  although  in  that  case,  also,  it  was  held  that  the  contingency  on 
which  the  property  was  to  go  was  too  remote,  being  after  an  indefinite 
failure  of  issue,  yet  it  was  on  that  ground  and  on  that  alone  that  the 
limitation  was  not  supported.  In  the  case  of  Tucker  v.  Executors  of 
Stevens,  4  Desaus.  532,  the  question  was  directly  decided.  That  was  a 
deed  of  gift  of  a  brother  to  his  sister  for  life,  with  a  limitation  over  to 
such  issue  as  should  be  living  at  the  time  of  her  death,  and  the  court 
supported  the  right  of  the  children  under  the  deed.  That  was  indeed 
only  a  circuit  decision,  and  therefore  cannot  be  relied  on  as  a  binding 
authority.  But  it  was  the  opinion  of  a  very  able  and  learned  chancel- 
lor, whose  opinion  is  always  of  high  authority,  and  the  acquiescence  of 
the  counsel  is  evidence  of  the  prevailing  opinion  of  the  bar.  We  are 
supported,  then,  by  the  opinions  of  the  highest  tribunals  of  the  country 
from  the  year  1794.  And  those  not  expressed  as  mere  speculative  and 
4  Kales  Prop. — 12 


178  CLASSIFICATION'   OF  FUTURE   INTERESTS  (Part  1 

doubtful  opinions,  but  as  the  settled  principles  of  law.  And  those  suc- 
cessive opinions,  from  such  sources,  for  such  a  length  of  time,  though 
not  expressed  in  the  most  solemn  form,  ought  now  to  be  considered  as 
conclusive  authority  upon  this  court.  I  concur  therefore  in  the  opinion 
of  the  presiding  judge  on  the  effect  of  this  deed.  I  have  not  entered 
into  the  inquiry  whether  it  may  not  be  supported  upon  some  other  con- 
struction. For  the  view  which  I  have  taken  of  it  covers  the  whole 
ground,  and  if  correct  renders  it  perfectly  immaterial  whether  it  is  not 
susceptible  of  some  other  construction  which  would  lead  to  the  same 
conclusion.  I  am  of  opinion  that  the  plaintiffs  showed  no  title  in  them- 
selves, and  that  the  nonsuit  was  properly  ordered.  The  motion  must 
therefore  be  refused. 

C01.COCK,  J.,  and  Johnson,  J.,  concurred. 

Motion  refused.'' 


BRUM  MET  V.  BARBER. 

(Court  of  Appeals  of  Sontli  Carolina,  1834.     2  Hill,  543.) 

Trover  for  negroes.  The  plaintiff  claimed  as  the  son  of  Spencer 
Brummet,  and  tlie  defendant  as  the  administratrix  of  Natlianiel  Barber, 
dec'd.  The  jury,  in  a  special  verdict,  found  the  following  facts :  That 
the  negroes  Sine  and  Mille,  who  (with  their  increase)  are  the  subjects 
of  this  action,  originally  belonged  to  Spencer  Brummet  and  Daniel 
Brummet ;  that  they  gave  the  negroes  to  Comfort  Perry,  their  niece ; 
and,  through  William  Brummet,  delivered  them  to  her  father,  Zadock 
Perry,  who,  at  the  time,  signed  the  following  receipt  or  acknowledg- 
ment  in  writing,  as  containing  the  terms  and  Hmitations  of  the  gift: 
"1  say  received  of  William  Brummet,  for  the  use  of  my  daughter  Com- 


fort Perry  andnheTieirs^f  her  body71:wo  negro  girls,  named  Sine  and 
Millej  burshDiildrlhe^Tatd"X!jDmTortdie  without  children  to  heir  the 
said  negroes,  then  the  said  negroes_are  to  return  to  the  sons  of  Spencer 
and  Darnel  Brummet,  and  their  heirs  forever.  This  8th  day  of  Jan- 
uary, 1792.  (Signed)  Zadock  Perry." 

That  Comfort  Perry  intermarried  with  Nathaniel  Barber,  and  the 
negroes  in  question  thereupon  went  into  his  possession,  on  which  occa- 
sion he  signed  the  following  instrument,  referring  to  the  former  receipt 

"'  Accord:  McCall  v.  Lee,  120  111.  261,  11  N.  E.  522  (limitations  created  by 
a  writing  not  under  seal  and  delivery).  See  Gray,  Rule  against  Perp.  (2d  Ed.) 
§§  95,  849. 

Contra:     North  Carolina:  Gray,  Rule  against  Perp.  (2d  Ed.)   §§  92-94.  In 

that  state  a  grant  by  deed"  of  a  life  interest  in  a  chattel  passes  the  abso- 
lute property.  There  can  be  no  reversion  and  attempted  gifts  over  are  void. 
Gray,  Rule  against  Perp.  (2d  Ed.)  §  92. 

But  even  in  North  Carolina  a  future  limitation  after  a  life  estate  in  chat- 
tels personal  is  valid  when  created  by  will.  The  same  is  true  of  other  Amer- 
ican jurisdictions:    Gray,  Rule  against  Perp.  (2d  Ed.)  fi  88. 


Ch.  8)  FUTURE   INTERESTS   IN   PERSONAL  PROPERTY  179 

of  Zadock  Perry,  and  acknowledging  that  he  took  the  negroes  agree- 
ably to  its  terms,  to  wit : 

"Received  of  Zadock  Perry  two  negro  women,  named  Sine  and 
Mille,  and  their  increase,  agreeable  to  a  receipt  in  the  hands  of  Dan- 
iel and  Spencer  Brummet,  it  being  in  full  of  all  debts  and  demands 
of  the  same,  likewise  a  clear  receipt  for  all  dues  and  demands  for  my- 
self, of  the  above-named  Zadock  Perry.  I  say  received  by  me,  this 
30  December,  1798.  (Signed)  Nath'l  Barber." 

Comfort  Perry  (then  Mrs.  Barber)  died  in  1829  without  issue,  hav- 
ing borne  a  child  who  died  before  her  death.  The  negroes  afterwards 
continued  in  the  possession  of  Nath'l  Barber  until  his  death,  when  they 
passed  into  the  hands  of  the  present  defendant,  his  widow  and  adminis- 
tratrix, who  holds  and  claims  them  in  right  of  her  intestate.  Daniel 
Brummet  died  without  issue,  and  Spencer  Brummet  died  leaving  the 
plaintiff,  his  only  son,  who  claims  under  the  limitation  over  on  the  gift 
to  Comfort  Perry.  If  the  court  should  be  of  opinion,  from  these  facts, 
that  the  plaintiff  is  entitled  to  recover,  the  jury  find  for  the  plaintiff 
eight  thousand  five  hundred  dollars  ;  but  if  the  court  should  hold  other- 
wise, they  find  for  the  defendant. 

The  presiding  judge  ordered  the  postea  to  be  delivered  to  the  de- 
fendant. 

The  plaintiff  appealed,  and  moved  to  reverse  the  decision  of  the  Cir- 
cuit Court,  and  for  leave  to  enter  judgment  for  the  plaintiff',  on  the 
ground :  That  upon  the  proper  construction  of  the  instruments  in  writ- 
ing, connected  with  the  facts  found  by  the  jury,  the  conditions  and 
limitations  therein  expressed  are  valid  and  effectual,  and  the  plaintiff 
entitled  to  recover. 

The  defendant  also  appealed,  and  moved  for  a  nonsuit  or  a  new  trial, 
on  the  grounds : 

1.  That  the  receipt  signed  by  Zadock  Perry  was  improperly  received 
in  evidence. 

2.  That  the  finding  of  the  jury  that  the  negroes  belonged  to  Spencer 
and  Daniel  Brummet  was  without  evidence. 

3.  That  the  limitation  condition,  or  trust  of  the  gift,  was  by  parol, 
and  cannot,  therefore,  be  sustained. 

O'Neall,  J.  In  this  case  several  questions  are  made  on  the  appeal 
by  both  the  plaintiff  and  the  defendant.  Those  made  by  the  latter  are 
precedent  to  the  main  question  involving  the  plaintiff's  right  to  recover. 
They  will  be  first  considered. 

1.  It  is  contended  that  the  paper  signed  by  Zadock  Perry,  and  con- 
taining the  terms  on  which  he  received  the  slaves  from  the  Brummets, 
for  the  use  of  Comfort  Perry,  was  improperly  received  in  evidence. 
Regarding  Zadock  Perry  as  the  bailee  or  trustee  of  the  property  for 
Comfort  Perry  and  the  other  parties  entitled  to  take  under  the  bail- 
ment or  trust,  there  can  be  no  doubt  that  the  paper  is  properly  in 
evidence.     It  is,  indeed,  the  evidence  of  the  bailment  made  or  trust 


180  CLASSIFICATION   OF  FUTURE   INTERESTS  (Part  1 

created.  For  it  is  the  undertaking  of  the  bailee  or  trustee  to  deliver 
over  the  property  to  the  uses  which  the  bailors  or  donors  directed  when 
they  put  it  into  his  possession. 

But  if  there  could  be  any  doubt  about  the  matter  after  this  illustra- 
tion of  it,  still,  in  another  point  of  view,  it  would  be  removed.  The 
verdict  of  the  jury  has  found  the  fact  that  Nathaniel  Barber,  the  hus- 
band of  Comfort  Perr}'^,  and  the  intestate  of  the  defendant,  when  he 
received  the  possession  of  the  said  property  from  Zadock  Perry,  "exe- 
cuted the  paper  signed  N.  Barber,  bearing  date  30th  December,  1798, 
referring  to  the  former  receipt  of  Zadock  Perry,  and  acknowledging 
that  he  received  the  negroes  agreeable  to  that  receipt."  This  made  the 
paper  signed  by  Zadock  Perry  the  same  as  if  it  had  been  signed  by 
Nathaniel  Barber ;  and  it  is,  hence,  his  admission  of  tlie-  manner  in 
which  he  held  possession  of  the  said  slaves.  In  this  point  of  view, 
it  is  perfectly  clear  that  it  was  properly  admitted  to  be  read  in  evidence 
on  the  trial  of  this  cause. 

2.  It  is  supposed  that  the  jury  improperly  found  the  said  slaves  to 
have  been  the  property  of  Spencer  and  Daniel  Brummet,  the  supposed 
donors.  The  fact,  that  Zadock  Perry  received  from  William  Brummet 
the  negroes  for  the  use  of  his  daughter,  and  the  heirs  of  her  body ;  but 
if  she  should  die  without  children,  then  that  they  were  to  return  to 
the  sons  of  Spencer  and  Daniel  Brummet,  goes,  in  itself,  very  far  to 
show  that  Spencer  and  Daniel  were  the  owners  and  donors.  For  the 
words  "to  return"  mean,  in  ordinary  acceptation,  to  go  back ;  as  used 
in  this  paper,  they  would  fairly  mean  and  imply,  that  if  the  donee  and 
her  descendants  could  not  enjoy  the  property,  then  that  it  should  go 
back  to  a  part  of  the  family  of  the  persons  from  whom  it  came.  When 
the  receipts  of  Perry  and  Barber  are  connected  with  the  testimony  of 
Mrs.  Gregory,  they  abundantly  sustain  the  verdict  in  this  behalf. 

3.  It  is  urged  by  the  defendant_that  a  limitation  over  in  personalty 
cannotbe~created  by^ajwriting  noTunder  seal.  To  meet  this  objection 
fairly,  this  case  ought  to  be  considered  in  two  different  points  of  view: 
1st,  as  a  trust  in  chattels  personal;   2d,  as  a  direct  gift. 

Upon  examining  the  case  in  the  first  point  of  view,  there  seems  to  be 
notjmig  to  prevent  a  trust  in  personalty  from  being  created  by  parol, 
either  Ivritten  or  unwritten.  The  7th  and  8th  sections  of  the  Statute 
of  Frauds  ahd  Perjuries  require  all  declarations  or  creations  of  trusts 
or  confidences,  in  lands,  tenements,  or  hereditaments  (except  implied 
or  constructive  trusts),  to  be  in  writing,  signed  by  the  party,  who  is, 
by  law,  enabled  to  declare  such  trust,  or  by  his  last  will  in  writing. 
P.  L.  83.  This  provision  applies  altogether  to  land,  leaving  personal 
property  still,  as  at  common  law;  but  it  is  useful  to  see  that  even  in 
real  estate,  and  by  Statute,  it  is  not  necessary  to  declare  or  create  a 
trust,  that  the  same  should  be  declared  or  created  by  deed.  What  is 
a  trust  in  personalty  at  common  law  ?  It  is  a  mere  bailment,  the  de- 
livery of  a  thing  to  one  person,  on  the  confidence  that  he  would  de- 


Ch.  8).  FUTURE    INTERESTS   IX   PERSONAL   PROPERTY  181 

liver  it  to  another.  The  ilhistrations  of  the  principle  established  in 
Jones  V.  Cole,  2  Bailey,  332,  show  that  this  is  the  correct  notion  of  a 
trust  in  personal  property.  This  being  so,  it  may  be  created  by  any 
words  or  acts  which  show  that  the  party  in  possession  received  it  for 
another;  or  for  himself  and  another  together;  or  for  himself  for  his 
own  life,  or  the  life  of  another,  and  then  that  it  go  over  in  remain- 
der or  reversion.  Each  of  these  cases,  as  well  as  all  other  cases  of 
qualified  interests  in  personal  property  in  possession,  are,  most  gener- 
ally, nothing  more  than  legal  trusts,  or,  as  they  are  more  technically 
termed,  bailments.  These  arise  from  the  fact  that  the  possession  is 
fiduciary,  and  not  in  one's  own  right.  That  parol  is  competent  to 
qualify  possession,  has  never  been  doubted.  But  to  show  the  admissi- 
bility of  mere  word  of  mouth,  to  make  out  a  trust,  in  personal  proper- 
ty, to  the  satisfaction  of  every  one,  let  us  state  a  plain  and  common 
case.  A.  is  in  the  possession  of  goods,  which  he  verbally  admits  he  is  en- 
titled to  hold  only  for  his  own  life,  and  then  that  they  are  to  go  over  to 
B.  or  to  return  to  the  donor  C.  Who  would  doubt  that  on  proof  of 
such  an  admission,  B.  or  C.  (as  the  case  might  be),  would  be  entitled, 
after  the  termination  of  A.'s  life  estate,  to  recover  against  his  personal 
representatives,  who  might  be  in  possession  of  the  goods?  Why  is 
this  so?  Because  his  admission  shows  that  his  right  of  property  ex- 
tended only  during  his  own  life,  and  this  being  consistent  with  his  pos- 
session, the  latter  could  confer  no  higher  or  greater  right ;  and  that  thus 
being  a  tenant  for  life,  in  possession,  acknowledging  the  remainder  or 
reversion,  he  is  a  trustee  for  the  preservation  of  the  same. 

In  the  case  under  examination,  connect  Zadock  Perry's  receipt  with 
Nathaniel  Barber's  (which  is  the  true  position  of  the  case),  and  divest 
it,  for  the  present,  of  the  question  as  to  the  validity  of  the  limitation 
over,  and  a  plain  acknowledgment,  on  the  part  of  Nathaniel  Barber, 
is  made  out,  that  he  held  the  negroes  absolutely,  if  his  wife  Comfort 
should  die  leaving  children ;  but  if  she  should  die  without  having  chil- 
dren, then  that  the  negroes  should  go  over  to  the  sons  of  Spencer  and 
Daniel  Brummet.  This  is  not  a  covenant  to  stand  seised  to  uses,  which, 
as  is  very  properly  said  in  Porter  v.  Ingram,  4  ]\rCord,  201,  appHes 
altogether  to  real  estate ;  but  it  is  an  acknowledgment  that  Nathaniel 
Barber  is  in  possession,  on  the  trust  and  confidence,  that  on  the  death  of 
his  wife  without  children,  he  would  deliver  over  the  slaves  to  the  re- 
maindermen, or,  as  it  really  turned  out,  to  the  remainderman  the  plain- 
tiff. There  is  nothing  to  prevent  such  a  future  expectancy,  by  way  of 
trust,  from  being  created  by  any  instrument  of  writing.  For  in  Powell 
V.  Brown,  1  Bailey,  100,  it  was  held  that  a  future  interest  in  a  chattel 
personal  might  be  created  or  reserved,  by  way  of  remainder  or  rever- 
sion by  deed.  Let  it  be  borne  in  mind,  that  to  pass  personal  property,  a 
deed  is  not  necessar}^;  that  it  was  the  nature  of  the  thing  itself,  its 
perishableness,  which  at  common  law  originally  forbade  an  estate  in 
remainder  or  in  reversion  in  it.    This  ancient  and  strict  notion  of  the 


182  CLASSIFICATION   OF   FUTURE   INTERESTS  (Part  1 

common  law  having  given  way  to  the  change  in  the  value  and  nature 
of  personal  property,  such  an  interest  is  now  permitted  to  be  raised 
and  to  exist;  and  it  follows,  that  if  it  can  be  created  or  reserved  by 
deed,  which  never  was  essential  to  the  transmission  of  personal  prop- 
erty, it  may  be  in  any  other  way  in  which  personalty  may  be  passed 
from  one  person  to  another,  as  by  delivery  of  possession  according  to 
mere  w^ord  of  mouth,  or  any  written  instrument  defining  the  interest  to 
be  taken  and  enjoyed  therein. 

If,  however^  in  this  case,  we  discard  all  the  doctrine  in  relation  to 
tru^ts^of  personal  jyojDertyj^and  consider  it  as  a  gift7evidence(l"^bv  the 
admission  of  Barber,  properly  inf erredT  from  his  receipt  in  connection 
with  and  explainedby^that  of  ZadodT  Perry,  I  think  the  limitation  over, 
created  by  a  parol  instrument  of  writing,  is  good,  as  between  the  plain- 
tifiFT^the^remamderman,  and~the  defendant,  the"  widow  of  Nathaniel 
Barber,  the  tenant  per  auter  vie.  It  seems  jto^  be  clear  that  anything 
which  will  be  good  and  effectual  in  law  to  pass  personal  property  must 
be  equally  so  to  limit  it ;  and  this  I  take  to  be  the  settled  principle, 
prqpert}rdeducible  fronTthe  case  of  Dupree  v.  Harrington,  and  Reeves 
V.  Harris. 

In  Dupree  v,  Harrington,  Harp.  391,  it  was  held,  that  a  written 
stipulation  in  a  note  given  for  the  purchase  of  a  mare,  "that  the  mare 
should  remain  the  property  of  the  vendor  until  half  the  price  was  paid," 
was  good  and  valid ;  and  that  the  property  remained  in  the  vendor, 
notwithstanding  the  possession  was  in  the  vendee,  until  the  condition 
was  complied  with.  If,  by  writing,  the  right  of  property  may  be  re- 
tained after  the  vendor  has  delivered  possession  of  personal  property, 
it  would  seem  to  follow  that  the  owner  of  it  might,  at  the  time  he  parts 
with  the  possession,  create  or  reserve,  by  writing,  any  future  interest 
which  was  not  too  remote. 

In  Reeves  v.  Harris,  1  Bailey,  563,  a  verbal  condition  on  the  sale  of  a 
horse,  that  he  should  still  remain  the  property  of  the  vendor,  until  the 
price  was  paid,  notwithstanding  the  vendor  delivered  the  possession  to 
the  vendee,  was  held  to  be  legal  even  against  a  creditor.  As  between 
the  vendor  and  a  creditor,  that  case  is,  I  think,  an  anomalous  and  un- 
sound authority.  For  in  Dupree  v.  Harrington,  on  the  authority  of 
which  it  professes  to  be  decided,  the  question  was  between  the  vendor 
and  the  administrator  of  the  purchaser.  So  far,  between  the  parties, 
the  principle  of  both  cases  is  right ;  as  between  them  any  conditions 
which  enter  into  their  contract,  either  verbally  or  in  writing,  must  be 
binding.  So,  too,  in  a  gift  of  personalty :  the  donor  may,  in  writing 
or  verbally,  annex  any  conditions  he  pleases,  provided  they  be  not  in 
other  respects  contrary  to  law ;  and  if  the  donee  accept  the  gift  under 
such  conditions,  he  will  be  bound  by  them. 

4.  This  brings  up  for  consideration  the  limitation  itself  in  the  paper 
made  by  Zadock  Perry,  and  adopted  by  Nathaniel  Barber,  the  defend- 


Ch.  8)  FUTURE   INTERESTS  IN   PERSONAL  PROPERTY  183 

ant's  intestate.  Is  it  too  renTote?__IjLh[nl<jiot.  [The  discussion  on 
this  point  is  omitted.] 

The  motion  to  reverse  the  decision  of  the  judge  below,  and  for  leave 
to  the  plaintiff  to  enter  up  judgment  for  his  damages  on  the  special 
verdict,  is  granted. 

Johnson  and  Harper,  JJ.,  concurred.® 

8  See,  also,  Gray,  Rule  against  Perp.  (2d  Ed.)  §§  846,  848.  Accord:  Hill  v. 
Hill,  Dud.  Eq.  71  (S.  C,  Court  of  Chancery  and  Court  of  Appeal,  18.36,  1S37). 
Here  the  enforcement  of  the  shifting  interest  created  by  deed  was  upon  a 
bill  in  equity. 

A  fortiori,  shifting  interests  in  chattels  created  by  will  are  valid.  Rogers 
V.  Randall,  2  Speers,  38  (S.  C,  Court  of  Appeal,  1842). 

Contra  to  principal  case:  Wilson  v.  Cockrill,  8  Mo.  1  (1843),  where  it  is 
apparently  conceded  that  shifting  interests  created  by  will  in  personal  prop- 
erty are  valid. 


PART  II 

CONSTRUCTION  OF  LIMITATIONS 


CHAPTER  I 
INTRODUCTION 


ON  THE  PRINCIPLES  OF  LEGAL  INTERPRETATION,  by  F. 
Vaughan  Hawkins,  2  Juridical  Society  Papers,  298  (1858-63) :  "There 
is  obviously  both  a  science  and  an  art  of  interpretation.  The  business 
of  the  art  is  to  collect  and  furnish  practical  rules  and  maxims  for  per- 
forming the  process  of  Interpretation,  in  relation  to  this  or  that  class 
of  writings  upon  which  it  may  have  to  be  exercised.  The  business  of 
the  science  is  to  analyse  the  nature  of  the  process  itself  of  Interpreta- 
tion, and  to  discover,  by  a  deductive  method,  the  principles  on  which 
it  rests,  and  in  conformity  with  which  the  proceedings  of  the  art  are 
or  ought  to  be  regulated." 


WIGMORE  ON  EVIDENCE,  §§  2458,  2459:  "The  process  of 
Interpretation  is  a  part  of  the  procedure  of  realizing  a  person's  act  in 
the  external  world.     *     *    * 

"The  method  of  it  consists  in  ascertaining  the  actor's  associations 
or  connections  between  the  terms  of  the  act  and  the  various  possible 
objects  of  the  external  world.     *    *    * 

"The  first  question  must  always  be.  What  is  the  standard  of  inter- 
pretation ?  The  second  question  is.  In  what  sources  is  the  tenor  of  that 
standard  to  be  ascertained?  Sometimes  one  or  the  other  of  these 
questions  miay  interpose  no  difficulty ;   but  both  must  always  be  settled. 

"(1)  The  standard  of  interpretation,  as  involved  in  legal  acts,  is  the 
personality  whose  utterances  are  to  be  interpreted.  There  are  practi- 
cally four  different  available  standards.  First,  there  is  the  standard  of 
the  normal  users  of  the  language  of  the  forum,  the  community  at  large, 
represented  by  the  ordinary  meaning  of  words.  Next,  there  is  the 
standard  of  a  special  class  of  persons  within  the  community, — the  fol- 
lowers of  a  particular  trade  or  occupation,  the  members  of  a  particular 
religious  sect,  the  aliens  of  a  particular  tongue,  the  natives  of  a  par- 
ticular dialect,  who  use  certain  words  in  a  sense  common  to  the  en- 
tire class,  but  different  from  that  of  the  community  at  large.  Thirdly, 
there  is  the  standard  of  the  specific  parties  cooperating  in  a  bilateral 

(184) 


Ch.  1)  INTRODUCTION  185 

act,  who  may  use  words  in  a  sense  common  to  themselves  and  unknown 
to  any  others.  Finally,  there  is  the  standard  of  an  individual  actor, 
who  may  use  words  in  a  sense  wholly  peculiar  to  himself ;  and  here 
the  question  will  naturally  arise  whether  he  may  insist  on  his  individual 
standard  in  the  interpretation  of  the  words  of  the  contract,  or  even 
of  a  unilateral  act  such  as  a  will.  The  first  inquiry  in  interpretation, 
then,  is  to  determine  which  of  these  standards  is  the  proper  one  for  the 
particular  act  to  be  interpreted;  and  for  this  purpose  certain  working 
rules  have  to  be  formulated. 

"(2)  The  sources  for  ascertaining  the  tenor  of  the  standard  form  the 
second  object  of  inquiry.  Since  interpretation  consists  in  ascertaining 
the  associations  between  the  specific  terms  used  and  certain  external 
objects,  and  since  these  associations  must  be  somehow  knowable  in 
order  to  proceed,  the  question  is  where  they  are  to  be  looked  for.  So 
far  as  the  standard  of  interpretation  is  solely  the  normal  one  of  the 
community,  the  inquiry  is  a  simple  one ;  the  usage  of  the  community 
(as  represented  in  dictionaries  and  elsewhere)  is  the  source  of  informa- 
tion. But  that  standard  (as  will  be  seen)  is  rarely  the  exclusive  one. 
The  mutual  standard  of  parties  to  a  bilateral  act,  and  for  wills  the  in- 
dividual standard  of  the  testator,  is  constantly  conceded  to  control ; 
and  it  then  becomes  necessary  to  search  among  the  prior  and  subsequent 
utterances  of  the  party  or  parties  to  ascertain  their  usage,  or  fixed 
associations  with  the  terms  employed.  In  resorting  to  these  data,  the 
question  then  arises  whether  there  is  any  prohibitive  rule  of  law  which 
limits  the  scope  of  search  and  forbids  the  use  of  certain  data.  These 
rules,  if  any,  form  the  second  part  of  the  law  of  interpretation. 

"Before  proceeding,  however,  to  these  two  parts  of  the  subject  in 
their  order,  it  is  necessary  to  fix  upon  a  terminology  and  to  avoid 
misunderstanding  in  the  use  of  words.  When  we  seek  to  ascertain  the 
standard  and  sources  of  interpretation,  and  thereby  to  discover  the 
actor's  association  of  words  with  external  objects,  what  is  the  term,  in 
one  word,  which  describes  the  object  of  the  search?  Is  it  the  person's 
'meaning'  ?  Or  is  it  his  'intention'  ?  Over  this  difference  of  phraseology 
has  persisted  an  endless  controversy,  which,  like  that  of  the  two  knights 
and  the  shield  at  the  cross-roads,  is  after  all  resolvable  mainly  into  a 
difference  of  epithets  only. 

"§  2459,  Same  :  'Intention'  and  'Meaning'  Distinguished.  The  dis- 
tinction between  'intention'  and  'meaning'  is  vital.  The  distinction  is 
independent  of  any  question  over  the  relative  propriety  of  these  names ; 
for  there  exist  two  things,  which  must  be  kept  apart,  yet  never  can  be 
unless  different  terms  are  used.  The  words  'will'  and  'sense'  may  be 
taken  as  sufficiently  indicative  of  these  two  things  and  free  from  the 
ambiguity  of  the  other  terms. 

"Will  and  Sense,  then,  are  distinct.  Interpretation  as  a  legal  process 
is  concerned  with  the  Sense  of  the  word  used,  and  not  with  the  Will 
to  use  that  particular  word.  The  contrast  is  between  that  W^ill,  or 
volition  to  utter,  which,  as  the  subjective  element  of  an  act,  makes  a 


186  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

person  responsible  for  a  particular  utterance  as  his,  and  that  Sense 
or  meaning  which  involves  the  fixed  association  between  the  uttered 
word  and  some  external  object.  It  has  already  been  seen  (ante,  §  2413) 
that  by  the  general  canon  of  legal  acts,  the  person's  actual  will  or  in- 
tent to  utter  a  given  word  can  seldom  be  considered  for  legal  purposes. 
If  he  has  exercised  a  volition  to  utter  something,  then  he  is  responsible 
for  such  utterance  as  is  in  external  appearance  the  utterance  he  in- 
tended,— whether  or  not  he  actually  intended  it.  On  the  other  hand, 
the  sense  of  his  word  as  thus  uttered — his  fixed  association  between  that 
symbol  and  some  external  object — may  usually  be  given  full  efl:'ect,  if  it 
can  be  ascertained.  The  rules  for  the  two  things  may  be  different. 
The  law  has  thus  constantly  to  emphasize  the  contrast  between  the  pro- 
hibitive rule  applicable  to  the  creation  of  an  act  (ante,  §  2413),  and  the 
present  permissive  rule  applicable  to  its  interpretation.  Judges  are  de- 
sirous, when  investigating  the  sense  of  the  words  as  uttered  by  the  per- 
son, of  emphasizing  that  they  do  not  violate  the  rule  against  inquiring 
whetlier  he  actually  intended  to  utter  those  words.  Hence  the  reitera- 
tion of  the  contrast  between  'intention'  and  'meaning' : 

"1789,  Kenyon,  L.  C.  J.,  in  Hay  v.  Coventry,  3  T.  R.  83,  86:  'We 
must  collect  the  meaning  of  the  testator  from  those  words  which  he 
has  used,  and  cannot  add  words  Avhich  he  has  not  used.' 

"1833,  Parke,  J.,  in  Doe  v.  GwiUim,  5  B.  &  Ad.  122,  129:  'In  ex- 
pounding a  will,  the  Court  is  to  ascertain,  not  what  the  testator  actually 
intended,  as  contradistinguished  from  what  his  words  express,  but 
what  is  the  meaning  of  the  words  he  used.' 

"1833,  Denman,  L,.  C.  J.,  in  Rickman  v.  Carstairs,  5  B.  &  Ad.  663: 
'The  question  *  *  *  jg  not  what  was  the  intention  of  thp  parties, 
but  what  is  the  meaning  of  the  words  they  have  used.' 

"The  common  terminology  of  these  judicial  explanations  is  unfor- 
tunate, because  'meaning'  has  a  suggestion  of  the  state  of  the  person's 
mind  as  fixed  on  certain  objects,  and  'intention'  bears  the  same  sugges- 
tion. The  constant  exclusion  of  the  state  of  the  person's  mind  in  one 
aspect,  and  yet  its  consideration  in  another  aspect,  are  thus  apparently 
contradictory  and  irreconcilable.  But  the  terms  'will,'  or  'volition,'  and 
'sense,'  serve  to  avoid  this  ambiguity.  They  emphasize  the  distinction 
that  the  will  to  utter  a  specific  word  is  one  thing,  and  the  fixed  associa- 
tion of  that  word  is  another  thing.  Thus  the  Creation  of  the  act  and 
its  Interpretation  as  created  are  kept  distinct." 


ON  THE  PRINCIPLES  OF  LEGAL  INTERPRETATON,  by  F. 
Vaughan  Hawkins,  2  Juridical  Society  Papers,  329  (1858-63) :  "One 
consideration,  however,  I  will  not  pass  over :  I  mean  the  great  dift'er- 
ences  which  exist  in  the  measure  of  interpretation  as  applied  under  dif- 
ferent judicial  systems  and  by  different  judicial  minds,  and  the  con- 
sequent necessity  for  accumulating  a  certain  mass  of  decisions,  in  or- 


Ch.  1)  INTRODUCTION  187 

der  to  supply  a  uniform  standard,  and  to  fix  the  nearest  approach  to 
absohite  correctness  by  striking  an  average  of  opinions  through  a  long 
series  of  years.  It  is  sometimes  said,  in  relation  particularly  to  testa- 
mentary interpretation,  that  authorities  can  be  of  no  service :  that  to 
quote  cases  is  to  construe  one  man's  nonsense  by  another  man's  non- 
sense, and  that  all  a  judge  has  to  do  is  to  read  the  writing  and  endeav- 
our to  make  out  from  it  the  meaning  of  the  testator.  Now,  if  interpre- 
tation were,  like  the  determination  of  the  meaning  of  words  whose 
signification  is  fixed,  something  that  can  be  done  with  absolute  certain- 
ty, in  which  one  man  would  come  to  the  same  conclusion  as  another, 
and  which  is,  so  to  speak,  the  same  all  the  world  over,  the  study  of 
previous  authorities  might  indeed  be  unnecessary.  But,  in  truth,  it 
would  be  as  reasonable  to  say,  that  no  authorities  were  to  be  consulted 
on  a  question  of  equity,  that  a  judge  ought  to  act  upon  his  own  notions 
of  what  was  equitable,  and  that  as  circumstances  are  infinitely  various, 
one  case  could  never  show  what  it  was  right  to  do  in  another.  Ex- 
perience shows  that  the  limits  of  interpretation  will  be  fixed  at  very 
different  points  by  different  persons ;  and  there  is,  perhaps,  no  legal 
subject  which  brings  out  peculiarities  of  individual  bias  and  disposi- 
tion more  strongly  than  difficult  problems  of  construction.  By  the  com- 
bined result  of  the  decisions  of  a  succession  of  judges,  each  bringing 
his  mind  to  bear  on  the  views  of  those  who  preceded  him,  a  system  of 
interpretation  is  built  up,  which  is  likely  to  secure  a  much  nearer  ap- 
proach to  perfect  justice  than  if  each  interpreter  were  left  to  set  up 
his  own  standard  of  how  far  it  was  right  to  go  in  supplying  the  de- 
fective expression,  or  of  what  amounted  to  a  conviction  of  the  intent 
as  distinguished  from  mere  speculative  conjecture.  Rules  of  construc- 
tion are  matters,  the  expediency  of  which  may  be  more  doubtful ;  but, 
that  Principles  of  construction  there  must  be  in  every  system  of  rational 
interpretation,  and  that  these  are  only  to  be  gathered  by  a  comparison 
of  a  large  number  of  important  cases,  and  by  striking  the  average  of  a 
large  number  of  individual  minds,  will  not,  I  think,  be  denied  by  any 
one  who  considers  interpretation  to  be  as  I  have  described  it,  a  pro- 
cess of  reasoning  from  probabilities,  a  process  of  remedying,  by  a  sort 
of  equitable  jurisdiction,  the  imperfections  of  human  language  and 
powers  of  using  language,  a  process  whose  limits  are  necessarily  in- 
definite and  yet  continually  requiring  to  be  practically  determined,  and 
not,  as  it  is  not,  a  mere  operation  requiring  the  use  of  grammars  and 
dictionaries,  a  mere  inquiry  into  the  meaning  of  words." 


INTERPRETATION  OF  WILLS,  by  Francis  M.  Nichols,  2  Jurid- 
ical Society  Papers,  376  (1858-63):  "Difficulties  of  interpretation 
more  frequently  arise  in  consequence  of  the  events  after  the  date  of 
the  will  being  different  from  those  contemplated  by  the  testator.  In 
such  a  case  it  may  be  said  that  the  testator  had  no  intention  specially 


188  CONSTRUCTION   OF  LIMITATIONS  (Part  2 

applicable  to  the  events  which  have  happened.  It  is  not  necessary, 
however,  tliat  a  testator  should  foresee  all  the  consequences  of  his  di- 
rection. The  only  question  for  the  interpreter  is,  whether  the  provision 
logically  includes  the  actual  case.  The  probability,  however  great,  that 
a  testator  would  have  qualified  a  clause  if  he  had  contemplated  all  its 
logical  consequences  in  the  actual  state  of  circumstances,  is  not  a  suffi- 
cient reason  for  refusing  to  give  effect  to  it." 


GRAY,  NATURE  AND  SOURCES  OE  LA\Y.— Appendix  VII. 
Rules  of  Construction:  Sec.  700.  In  statutes  any  rules  of  interpreta- 
tion ever  suggested  have  been  of  tlie  most  general  character,  and  the 
same  is  true  of  legal  writings  generally;  but  in  two  classes  of  instru- 
ments, deeds  of  real  estate  and  wills,  particularly  the  latter,  the  limited 
character  of  provisions,  probable  or  possible,  causes  language  of  a  simi- 
lar nature  to  be  often  employed,  and  thus  gives  opportunity  for  the  es- 
tablishment of  rules  of  construction. 

Sec.  701.  The  making  of  these  rules  was  at  on©  time  carried  too 
far  in  the  Common  Law ;  they  were  often  pushed  into  such  refinement 
that  they  lost  tlieir  practical  value,  and,  what  is  more,  they  sometimes 
attributed  to  a  testator  the  very  opposite  of  the  intention  which  he  was 
likely  to  have  had,  as  with  the  rule  that  the  words  "dying  without  is- 
sue" meant  an  indefinite  failure  of  issue.  Against  this  disposition 
there  has  of  late  years  been  a  decided  reaction  on  the  part  of  the 
courts.  Judges  have  spoken  with  contempt  of  the  mass  of  authorities 
collected  in  Mr.  Jarman's  bulky  treatise  on  Wills,  have  declared  that 
the  mode  of  dealing  with  one  man's  blunder  is  no  guide  as  to  the  mode 
of  dealing  with  another  man's  blunder,  and  especially  ha\e  said  that 
each  will  is  to  be  determined  according  to  the  intention  of  the  testator 
and  that  the  judicial  mind  should  apply  itself  directly  to  that  problem, 
and  not  trouble  itself  with  rules  of  construction. 

Sec.  702.  And  yet  it  may  be  doubted  whether  the  pendulum  of  ju- 
dicial theory  and  practice  has  not  swung  too  far  in  this  direction.  It 
undoubtedly  sounds  very  prettily  to  say  that  the  judge  should  carry 
out  the  intention  of  the  testator.  Doubtless  he  should ;  but  some  judg- 
es, I  venture  to  think,  have  been  unduly  influenced  by  taking  a  fiction 
as  if  it  were  a  fact.  As  is  said  in  the  text  with  reference  to  the  Legis- 
lature, when  a  testator  has  a  real  intention,  it  is  not  once  in  a  hundred 
times  that  he  fails  to  make  his  meaning  clear.  For  instance,  if  a  testa- 
tor should  have  present  to  his  mind  the  question  w^hether  a  legacy  to 
his  wife  was  to  be  in  lieu  of  dower,  it  is  almost  incredible  that  he  should 
not  make  what  he  wished  plain.  When  the  judges  say  they  are  inter- 
preting the  intention  of  a  testator,  what  they  are  doing,  ninety-nine 
times  out  of  a  hundred,  is  deciding  what  shall  be  done  with  his  prop- 
erty on  contingencies  which  he  did  not  have  in  contemplation.  Now 
for  cases  in  which  a  testator  has  not  provided,  it  may  be  well  that 


Ch.  1)  INTRODUCTION  189 

there  should  be  fixed  rules,  as  there  are  for  descent  in  cases  of  intes- 
tacy. 

Sec.  703.  It  would  seem  that  the  first  question  a  judge  ought  to 
ask  with  regard  to  a  disputed  point  under  a  v/ill  should  be :  "Does  the 
will  show  that  the  testator  l.-ad  considered  this  point  and  had  any  actual' 
opinion  upon  it?"  If  this  question  be  answered  in  the  affirmative, 
then  there  is  no  doubt  that  the  solution  of  the  testator's  intention  must 
be  sought  in  the  will.  But  in  the  vast  majority  of  cases  this  is  not 
what  has  happened.  What  the  judges  have  to  do  is,  in  truth,  to  say 
what  shall  be  done  where  the  testator  has  had  no  real  intention ;  the 
practice  of  modern  judges  to  which  I  have  alluded  is  to  guess  from  the 
language  used  in  the  particular  will  what  the  testator  would  have 
meant  had  he  had  any  meaning,  which  he  had  not;  the  older  practice 
was  to  look  for  an  established  rule  oi  construction.  In  the  modern 
practice  the  reasoning  is  often  of  the  most  inconclusive  character, 
but  the  judges  have  got  to  decide  the  case  somehow,  and  having  turn- 
ed their  backs  upon  rules  of  construction,  have  to  catch  at  the  slightest 
straw  with  which  to  frame  a  guess. 

Sec.  704.  Take,  for  instance,  the  word  "heirs,"  so  often,  indeed 
almost  always,  put  into  a  will  to  fill  out  the  final  limitations.  There  are 
jurisdictions  where  no  counsel  dares  to  advise  on  what  is  to  be  done 
with  property  that  is  bequeathed  to  "heirs."  The  judging  of  each  will 
by  itself  leads  necessarily  to  the  bringing  up  of  each  will  to  be  judged, 
and  is  responsible  for  a  great  deal  of  family  dissension  and  litigation. 

Sec.  705.  That  the  unsatisfactory  character  of  many  of  the  rules 
for  the  interpretation  of  wills  is  largely  responsible  for  their  present 
unpopularity  with  the  courts  cannot  be  denied;  but  I  only  wish  to 
point  out  that  what  many  judges  are  setting  up  against  the  rules  of 
construction  of  wills  is,  not  their  opinion  of  what  testators  really  in- 
tended, but  their  guess  at  what  the  testators  would  have  intended  if 
they  had  thought  of  the  point  in  question,  which  they  did  not,  a  guess 
resting  often  upon  the  most  trifling  balance  of  considerations. 


EATON  v.  BROWN,  193  U.  S.  411,  24  Sup.  Ct.  487,  48  L.  Ed.  730 
(1904),  Mr.  Justice  Holmes:  "The  English  courts  are  especially  and 
wisely  careful  not  to  substitute  a  lively  imagination  of  what  a  testatrix 
would  have  said  if  her  attention  had  been  directed  to  a  particular  point 
for  what  she  has  said  in  fact.  On  the  other  hand,  to  a  certain  extent, 
not  to  be  exactly  defined,  but  depending  on  judgment  and  tact,  the  pri- 
mary import  of  isolated  words  may  be  held  to  be  modified  and  con- 
trolled by  the  dominant  intention  to  be  gathered  from  the  instrument 
as  a  whole." 


190  CONSTRUCTION   OF  LIMITATIONS  (Part  2 


CHAPTER  II 

MEANING  OF  HEIRS  IN  A  LIMITATION  TO  THE  TESTA- 
TOR'S HEIRS  OR  THE  HEIRS  OF  A  LIVING  PERSON 


HOLLO  WAY  V.  HOLLOW  AY. 

(Court  of  Chancery,  1800.    5  Ves.  399.) 

Edward  Reeves  by  a  codicil,  dated  the  21st  of  July,  1763,  gave  to 
trustees  the  sum  of  £5000 :  in  trust  to  put  the  same  out  at  interest  on 
Government  or  other  securities,  and  to  pay  the  interest,  income  and 
produce,  thereof  to  his  daughter  Hindes  for  and  during  the  term  of 
her  natural  life,  se]:arate  and  apart  from  her  husband.  The  codicil 
then  proceeded  thus : 

"And  after  the  decease  of  my  said  daughter  Hindes  then  upon  this 
farther  trust,  that  they,  the  said  Augustine  Batt  and  Benjamin  Hollo- 
way,  their  executors  or  administrators,  do  pay  the  said  £5000  unto  such 
child  or  children  of  my  said  daughter  Hindes_as_sfie]^slTatHe'ave  at  the 
time  of  her  decease  in  such  shares  and  proportions  a^  she  "shall  tlfmk 
propeFlo"~giveT[fe  same;  and  in  case  she  shall  die  leaving  no  child, 
then  as  to  £1000,  part  of  the  said  £5000,  in  trust  for  the'Cxecutors,  ad- 
ministrators  or  assigns,  of  my  ^Hd^  daughteriliindesT'ahd'^  to  the 
£40C0_remainder  of  the  said  £5000^  in  trust  forsuch^person^oFpersons 
as'sliall  be  my  heir  or  heirs  at  law." 

The  testator  died  in  1767;  leaving  his  daughter  Su_sannah  Hindes 
and  two  other  daughters  his  co.-heiresses  at  law  and  his_ne;vt  of  km  at 


the  time  of  his  deHTi7~^usaimah~Tfindes~Iiaving  survived  her  husband 
died~without  issue  in  August,  1798. 

The  bill  was  filed  by  the  great-grandchildren  of  the  testator  by  his 
two  other  daughters,  the  plaintiffs  being  his  co-heirs  at  law  at  the  death 
of  Susannah  Hindes,  against  the  representatives  of  the  surviving  trus- 
tee, and  against  several  other  persons,  who  with  the  plaintiffs  were  the 
next  of  kin  of  the  testator  and  of  Susannah  Hindes ;  praying,  that  the 
plaintiffs,  as  co-heirs  of  the  testator  at  the  death  of  Susannah  Hindes, 
may  be  declared  entitled  to  the  said  £4000,  &c. ;  or  in  case  the  court 
shall  be  of  opinion,  that  any  other  construction  ought  to  be  put  upon 
such  bequest,  then  that  the  rights  of  the  plaintiffs  and  defendants  may 
be  declared,  &c. 

Master  of  the;  Rolls  [Sir  Richard  Pepper  ArdEn].  This  ques- 
tion arises  upon  a  very  doubtful  clause  in  this  codicil.  Unquestionably 
it  is  competent  to  a  testator,  if  he  thinks  fit,  to  limit  any  interest  to  such 
persons  as  shall  at  a  particular  time  named  by  him  sustain  a  particular 
character.  The  only  question  is,  whether  upon  the  true  construction 
of  this  codicil  it  must  necessarily  be  intended,  he  did  not  mean  by  these 


Ch.  2)  MEANING  OF   HEIRS  191 

words  what  the  law  prima  facie  would,  strictly  speaking,  intend,  heirs 
at  law  at  the  time  of  his  death.  A  testator  certainly  may  by  words 
properly  adapted  show,  that  by  such  words  persona  designata,  answer- 
ing a  given  character  at  a  given  time,  is  intended.  But  prima  facie 
tliese  words  must  jjgjjjidgJistood  in  their  legal_sense,  unless  by  the  con- 
text or  by  express  words  they  plaiuljTappear  to  be  intended  otherwise. 
In  this  case  these  words  are  not  necessarily  confined  to  any  particular 
time :  nor  from  the  nature  of  the  gift  is  there  any  necessary  inference, 
that  it  should  not  mean,  what  the  law  would  take  it  to  mean,  heirs  at 
the  death  of  the  testator.     It  is  not  like  the  case  of  Long  v.  Blackall,  6 


Ves.  Jr.  4S(x  The  words  there  put  it  out  of  the  power  of  the  cotirt  to 
put  upon  it  any  other  interpretation ;  though  it  was  much  contended, 
that  it  meant  at  the  death  of  the  testator.  In  that  case  the  word  "then" 
plainly  proved  that  tj2e__personal_rf^prp^pnf^ntivps_ivLthe  time  of  the 
death  were  not  intended ;  and  if  that  word  had  not  occurredTthere'was 
a  great  deal  to  show,  it  could  not  be  the  intention  (and  that  applies 
here) ;  for  there  the  wife  was  his  executrix;  and  it  would  have  been  a 
strange,  circuitous,  way  of  giving  it  to  her. 

In  Bridge  v.  Abbot,  3  Bro.  C.  C.  224,  and  Evans  v.  Charles,  1  Anstr. 
128,  a  great  deal  of  discussion  took  place  upon  such  words  as  these. 
In  the  first  of  these  cases  it  was  contended,  and  I  had  for  some  time 
little  doubt  upon  it,  that  it  was  intended  to  give  a  vested  interest  to  a 
party,  who  was  dead  before :  but  from  the  absurdity  of  that  and  of 
letting  it  be  transmissible  from  a  person,  in  whom  it  never  vested,  I 
was  of  opinion,  that  upon  the  true  construction  it  must  have  been  in- 
tended such  persons  as  at  the  death  of  the  testatrix  would,  if  John 
Webb  had  then  died,  have  been  his  personal  representatives.  I  wish 
to  add  a  few  words  to  the  report  of  that  case,  to  show,  what  the  de- 
cree was.  The  report  states,  that  I  declared  the  persons  entitled  as 
legal  representatives  to  be  the  persons,  who  would  have  been  entitled 
as  next  of  kin  to  John  Webb  at  the  death  of  Mary  King.  I  desire, 
that  these  words  may  be  added :  "in  case  he  had  at  that  time  died  in- 
testate."   I  believe,  those  words  were  added  in  the  decree. 

The  case  of  Evans  v.  Charles  arose  upon  similar  words,  but  under 
very  dissimilar  circumstances.  Lord  Chief  Baron  Eyre  observes  upon 
Bridge  v.  Abbot;  and  though  the  decision  of  the  court  was  different 
from  mine,  they  seem  to  think  my  opinion  right  in  that  case.  Evans 
V.  Charles  was  determined  upon  other  grounds ;  upon  which  the  Court 
of  Exchequer  felt  themselves  obliged  to  give  to  the  administratrix  of 
the  creditor.  There  is  certainly  an  obvious  distinction  between  them. 
It  was  truly  said  in  Evans  v.  Charles,  that  it  must  always  be  taken  to- 
gether with  the  context.  The  words  must  have  their  legal  meaning, 
unless  clearly  intended  otherwise.  In  this  case  I  was  struck  with  the 
circumstance  of  the  gift  to  the  daughter  for  life,  &c. ;  giving  it  to  the 
heirs  at  law ;  of  whom  she  would  be  one.  But  that  alone  would  not,  I 
apprehend,  be  sufficient  to  control  the  legal  meaning  of  the  words.  If 
ati  estate  for  life  was  devised  to  one,  and  after  his  death  to  the  right 


192  CONSTRUCTION   OF   LIMITATIONS  (Part  2 

heirs  of  the  testator,  it  never  would  be  held,  that,  though  the  tenant  for 
lTTe"was  one  ot  the  heirs,  that  would  reduce  hiio  to  an  e"stale  for  hte: 
but  he  would  take  a  fee. 

Long  v^~Blackall  has  that  very  leading  distinction  from  this  case 
upon  the  word  "then" ;  tliat  there  could  be  no  doubt  personal  repre- 
sentatives at  a  given  time  were  intended.  I  must  therefore  hold,  that, 
if  that  word  had  not  occurred,  the  judgment  of  the  Lord  Chancellor 
would  not  have  been  such  as  it  was ;  but,  as  it  is,  I  perfectly  concur  in 
that  judgment,  together  with  the  argument  from  the  circumstances. 

In  this  case  I_cannot  upon  that  ground  alone,  that  the  daughter 
named  in  the  will  was  one  of  the  heirs  at  law,  hold,  that  lieirs  at  a 
particular  time  were  intended.  My  opinion  is,  that  there  is  not  enough 
in  this  will  to  give  the  worH^s  any  other  than  their  prima  facie  con- 
struction :  heirs  at  law  at  his  own  death.  If  so,  it  would  be  a  vested 
interest  in  tlie__persons  aris}\'ering  that  description  at  his  own  death.  I 
have  not  put  thisconstniction^upon  it  in  order  to  avoT3  the  ditticulty, 
that  would  otherwise  arise:  but  I  am  very  glad,  that  this  relieves  me 
from  the  necessity  of  stating,  who  are  meant  by  the  words  "heirs  at 
law"  as  to  the  property,  which  is  the  subject  of  this  bequest.  This 
is  personal  property;  and  it  is  said,  that  though  "heirs,  &c.,"  have  a 
definite  sense  as  to  real  estate,  yet  as  to  personal  estate  it  must  mean 
such  person  as  the  lawpoints  out  to  succeed  to  personal  property.  I 
am"  much  inclmed  to  think  so.  If  personal  property  was  given  to  a 
marf^nd  his'heirsTrT^ould  go  to  his  executors.  I  rather  think,  if  I 
was  under  the  necessity  of  deciding  this  point,  I  must  hold  it  heirs 
quoad  the  property :  that  is,  next  of  kin :  but J[_am_relieved  from  that ; 
as,  if  heirs,  at  his  death  are  meant,  they  are  the  same  persons  ;  the  tHree 
daughters  bemg  both  heirslmd  nextot  km;  and  if  they  didTiot  fake 
as~heifs  at  law,  they  took  an  absolute~interest  in  themselves  in  the  per- 
sonal estate.  Great  dif/iculties  would  arise  from  the  construction,  that 
heirs  at  law  are  intended,  arTd~~arpplying  it  to  persorraf-property.  He 
might  have  ditferent  heirs  at  lawl  heiTs "descending  from  himself  as 
first  purchaser :  heirs  ex  parte  paterna  and  ex  parte  materna.  I  am 
inclined  to  think,  the  court  would  in  such  a  case  consider  him  as  the 
first  purchaser ;  so  as  to  take  in  both  lines.  However,  there  is  no  oc- 
casion to  say  anything  upon  that. 

Declare,  that  the  words  "heir  or  heirs  at  law"  in  this  will  must  be 
taken  to  mean  heir  or  heirs  at  law  at  the  time  of  the  testator's  death ; 
and  that  the  sum  of  £4000  vested  in  his  three  daughters^ 

lAccord:  Abbott  v.  Bradstreet,  3  Allen  (Mass.)  5S7;  Dove  v.  Torr,  128 
Mass.  38 ;  Kellett  v.  Shepard,  1J}9  111.  433,  28  N.  E.  751,  34  N.  E.  2.j4  ;  Brown 
V.  Brown,  253  111.  4G6,  97  N.  E.  680;  Allison  v.  Allison,  101  Va.  537,  44  S.  E. 
904,  03  L.  R.  A.  920 ;    Winn,  In  re  Brook  [1910]  1  Ch.  278. 

Tlie  same  result  is  reached  when  the  ultimate  gift  is  to  the  "next  of  kin" 
of  the  testator.  In  re  Trusts  of  Barber's  "Will,  1  Sm.  &  G.  118 ;  Lee  v.  Lee, 
1  Dr.  &  Sra.  85. 

In  Allison  v.  Allison  [1910]  1  Ch.  278,  the  next  of  kin  at  the  testator's  death 
took,  although  the  gift  to  such  next  of  kin  was  contingent  upon  their  sur- 


Ch.  2)  MEANING  OF  HEIRS  193 

WARE  V.  ROWLAND. 

(Court  of  Chancery,  1847.     2  Phil.  Ch.  635.) 

Philip  Slater,  by  his  will  dated  the  18th  of  July  1806,  directed  his 
executors  to  purchase,  in  the  3  per  cent,  reduced  annuities,  the  sum  of 
£600  a  year,  upon  trust  to  permit  his  wife  to  receive  the  said  annuity 
for  her  life,  and  after  her  death  in  trust  for  his  daughter  Anna  Maria 
Slater;    and  after  her  death,  to  distribute  the  principal  amongst  the 

viving  the  life  tenant,  who  was  one  of  the  six  next  of  kin  at  the  testator's 
death. 

In  some  cases  an  additional  and  special  context  tending  to  show  that 
"heirs  at  law"  meant  those  who  would  have  been  the  testator's  heirs  at  law 
if  the  testator  had  died  at  the  time  of  the  death  of  the  life  tenant  was  held 
insufficient  to  change  the  primary  meanins;  of  the  words.  Brown  v.  Brown, 
25.3  111.  466,  97  N.  E.  6S0 ;  8  111.  Law  Kev.  121 ;  Abbott  v.  Bradstreet,  3  Allen 
(Mass.)  587. 

A  fortiori,  where  the  life  tenant  is  not  one  of  the  heirs  at  law  or  next  of 
kin  of  the  testator  at  his  death,  the  ultimate  gift  to  the  testator's  heirs  at 
law  or  next  of  kin.  as  the  oa>;e  may  be,  means  primarily  those  who  answer 
that  description  at  the  testator's  death.  Doe  dem.  Pilkington  v.  Spratt,  5 
Barn.  &  Adol.  731 ;  AMiall  v.  Converse,  146  Mass.  .345,  15  N.  E.  660.  In  the 
latter  case  Holmes.  .!.,  said  (146  Mass.  348.  15  N.  E.  662):  "The  general  rule 
is  settled  that,  in  case  of  an  ultimate  limitation  like  that  of  the  fund  in  ques- 
tion to  the  testator's  heirs  at  law,  the  persons  to  take  are  those  who  answer 
the  description  at  the  time  of  the  testator's  death.  Dove  v.  Torr,  128  Mass. 
38.  40.  Minot  v.  Tappan.  122  Mass.  535,  537.  Abbott  v.  Bradstreet,  3  Allen 
[Mass.]  587.  The  reasons  for  this  rule  are,  that  the  words  cannot  be  used 
properly  to  designate  anybody  else;  that  such  a  mode  of  ascertaining  the 
beneficiary  implies  that  the  testator  has  exhausted  his  specific  wishes  by  the 
previous  limitations,  and  is  content  thereafter  to  let  the  law  take  its  course ; 
and,  perhaps,  that  the  law  leans  toward  a  construction  which  vests  the  in- 
terest at  the  earliest  moment,  'j-here  is  nothing  to  take  this  case  out  of  the 
general  rule,  and  it  requires  no  discussion  beyond  what  will  be  found  in  the 
decisions  cited." 

In  Smith  v.  Winsor,  239  111.  567,  88  N.  E.  482,  interests  were  devised  by  a 
husband  to  his  wife  for  life,  with  a  remainder  to  the  testator's  heirs  at  law. 
By  the  third  clause  of  his  will  the  testator  "in  case  his  wife  survived  him'' 
devised  to  his  wife  for  life  and  then  to  the  testator's  heirs  at  law.  By  the 
fourth  clause  he  provided  in  the  alternative  "in  case  my  wife  shall  not  sur- 
vive me,"  then  to  the  testator's  heirs  at  law.  "Heirs  at  law"  in  the  fourth 
clause  necessarily  excluded  the  wife.  "Heirs  at  law"  meant  the  same  thing 
in  the  third  clause  that  it  did  in  the  fourth  and  therefore  it  excluded  the 
wife  in  the  third  clause.     See  also,  Sears  v.  Russell,  8  Gray  (Mass.)  86. 

Note  on  the  Meaning  of  Hetks  at  Daw  of  the  Testator  in  a  Gift  to 
Such  Heirs  Where  the  Subject  of  the  Gift  is  Personal  Property  Alone, 
OB  a  Mixed  Fund  of  Real  and  Per.sonal  Property. — Where  personal  prop- 
erty alone  is  bequeathed  to  heirs  at  law,  those  take  who  are  entitled  to  per- 
sonalty on  an  intestacy.  Alexander  v.  Masonic  Aid  Assn.,  126  111.  558.  18  N 
E.  556,  2  D.  R.  A.  161 ;  Clay  v.  Clay,  63  Ky.  (2  Duv.)  295 ;  Lawton  v.  Corlies.' 
127  X.  Y.  100,  27  N.  E.  847 :  Ashton's  Estate,  134  Pa.  .'JOO,  19  Atl.  699 ;  Kendall 
V.  Gleason,  152  Mass.  457,  25  N.  E.  838,  9  L.  R.  A.  509. 

AVhere  a  blended  fund  of  real  and  personal  proi>erty  is  devised  to  the  trus- 
tee's "heirs,"  heirs  has  that  meaning  as  to  the  whole  fund  which  it  has  when 
applied  to  real  estate  alone.  Allison  v.  Allison,  101  Ya.  537,  44  S.  E.  904,  63 
L.  R.  A.  920 ;  Commonwealth  v.  Crowley,  167  Mass.  434,  45  X.  E.  760 ;  Heard 
v.  Read,  169  Mass.  216,  47  X.  E.  778 ;  Sehouler  on  Wills  (5th  Ed.)  §§  522,  547 ; 
2  Jarmau  on  Wills  (5th  Am.  Ed.)  *62,  *82.  But  see  Rawson  v.  Rawson,  52 
111.  62. 

4  Kaxes  Prop. — 13 


194  CONSTRUCTION   OF  LIMITATIONS  (Part  2 

children  of  his  said  daughter,  at  their  respective  ages  of  twenty-four 
years,  with  maintenance  in  the  meantime ;  after  which  the  will  proceed- 
ed as  follows : — "If  at  the  death  of  my  said  daughter  she  should  leave 
no  child  or  children  living,  or  in  the  event  of  such  child  or  children 
dying  under  twenty-four,  then  I  direct  my  trustees  to  sell  the  said 
principal  fund,  and  to  pay  thereout  to  my  son-in-law  J.  G.  Christian, 
and  my  grandson  G.  T.  Rowland  £500  each,  if  they  should  severally  be 
alive  at  that  time ;  and  all  the  rest  and  residue  of  the  said  principal  fund, 
with  the  interest  and  dividends,  I  give  and  bequeath  to  and  amongst 
my  heirs-at-law,  share  and  share  alike."  In  a  subsequent  passage  of 
the  will  the  testator  gave  the  residue  of  his  property  to  his  daughter 
Anna  Maria  Slater  by  name. 

Anna  Maria  Slater  was  the  only  surviving  child  of  the  testator  at  the 
date  of  his  w'ill,  and  she  was  also  his  sole  heiress-at-law,  and  next  of 
kin  at  the  time  of  his  death.  Upon  her  death,  in  the  year  1844,  with- 
out having  married,  the  heirs-at-law  of  the  testator  were  Philip  Slater 
Fall  and  Isaac  Hodgson  Wilson,  two  of  his  great-nephews,  grand-chil- 
dren of  his  two  sisters ;  and  his  next  of  kin  at  the  same  time  was  Je- 
mima Brune,  a  daughter  of  one  of  those  sisters. 

On  the  death  of  Anna  Maria  Slater,  the  principal  fund  set  apart  to 
answer  the  annuities,  consisting  of  about  £20,000  stock,  was  contested 
between  three  parties,  the  personal  representative  of  Anna  Maria,  as 
the  sole  heiress-at-law  and  next  of  kin  of  the  testator  at  the  time  of  his 
death;  Fall  and  Wilson,  as  his  co-heirs-at-law  at  the  death  of  Anna 
Maria;  and  Jemima  Brune,  as  his  sole  next  of  kin  at  the  same  period. 

The  Vice-Chancellor  of  England  having  decided  in  favor  of  the  first, 
the  other  two  parties  presented  separate  appeals,  \vhich  came  on  to  be 
argued  together. 

The  Lord  Chancellor  [Lord  Cottknham].  If  Holloway  v. 
Holloway,  5  Ves.  399,  lays  down  the  rule  correctly,  there  can  be  no 
doubt  of  its  governing  this  case.  In  that  case,  as  in  this,  the  testator 
had  a  daughter,  to  whom  he  gave  the  interest,  for  life,  of  a  sum  of 
money  which  he  directed  should  be  taken  out  of  his  general  estate  and 
invested.  In  that  case,  as  in  this,  after  the  daughter's  death,  her  chil- 
dren, if  any  should  be  living  at  the  time  of  her  death,  were  to  have  the 
fund,  and  if  she  left  no  children,  part  of  the  fund  in  Holloway  v.  Hol- 
low^ay  was  to  be  held  in  trust  for  the  personal  representative  of  the 
daughter;  and  the  remainder  of  the  fund  in  trust  for  such  person  or 
persons  as  should  be  the  testator's  heir  or  heirs-at-law.  In  the  present 
case,  in  the  event  of  the  daughter  not  leaving  children  the  trustees  were 
then,  that  is  in  that  event,  to  sell  the  trust-monies,  and  to  pay  thereout 
to  two  other  persons  a  certain  part,  if  they  should  be  severally  living  at 
that  time ;  and  then  follow  these  words :  "All  the  rest  and  residue  of 
the  said  principal  trust-monies,  with  the  interest,  increase,  and  divi- 
dends, I  give  and  bequeath  to  and  amongst  my  heirs-at-law,  share  and 
share  alike ;"  and  in  a  subsequent  part  of  his  will,  he  gave  all  the 
residue  of  his  property  to  his  daughter  by  name. 


Ch.  2)  MEANING   OF  HEIRS  195 

In  both  cases  the  word  "then"  is  to  be  found ;  but  in  both  it  refers  to 
the  event  and  not  to  the  time.  In  Holloway  v.  Holloway,  the  part  of 
the  fund  to  be  separated  from  the  rest  was,  in  the  event  of  the  daughter 
not  leaving  children,  to  be  her's  absolutely ;  and  the  gift  to  the  heirs 
is  of  the  remainder  of  the  fund ;  whereas,  in  the  present  case,  if  the 
persons  to  whom  part  of  the  fund  was  given  did  not  survive  the  daugh- 
ter, the  gift  to  them  was  not  to  take  effect;  in  which  case,  therefore, 
such  part  continued  a  constituent  part  of  the  fund,  and  would  pass  with 
it  to  the  heirs.  In  Holloway  v.  Holloway,  the  trust  for  the  heirs  is,  "for 
such  person  or  persons  as  shall  be  my  heir  or  heirs-at-law,"  there  being, 
at  the  testator's  death,  three  daughters  his  co-heirs-at-law  and  next  of 
kin;  and  the  word  "shall"  seemed  to  describe  persons  who  should  be 
found  to  the  heirs  at  a  future  time.  In  this  case,  there  being  but  one 
heir  and  next  of  kin,  the  testator  gives  "to  his  heirs-at-law  share  and 
share  alike."  He  uses  the  plural,  although  there  was  but  one :  in 
Holloway  v.  Holloway  he  uses  the  singular,  although  there  were  three 
heirs.  In  Holloway  v.  Holloway  the  testator  describes  the  duty  of  the 
trustees  to  arise  upon  the  death  of  the  daughter  without  issue.  In  the 
present  case,  after  prescribing  their  duty  as  to  the  portion  of  the  fund 
to  be  separated  and  paid  to  other  persons,  he  makes  a  new  and  distinct 
gift  to  the  heirs :  "All  the  rest  and  residue  of  the  said  trust-monies  I 
give  and  bequeath  amongst  my  heirs-at-law,  share  and  share  alike." 
Having  in  view  a  provision  for  certain  persons  not  to  be  permanent  ex- 
cept in  particular  events,  he  no  longer  declares  any  trust  of  the  fund  so 
appropriated,  but,  in  effect,  lets  it  fall  into  the  residue  of  his  estate  by 
giving  the  fund  subject  to  such  prior  gift  to  "his  heirs,"  who,  being  his 
daughter,  was  his  general  residuar}^  legatee. 

In  all  the  particulars  in  which  the  two  cases  differ,  the  differences 
are  in  favor  of~tIie  claim  oF"the  tuturejieir  m  Holloway  v.  Hollowav ; 
but"  IvOrd  Alvanley  actmg  upon  "tHeauthority  of  many  earlier  case  s , 


held  that  the  heirs  at  the  "5eath  were  the  parties  describe^d.  Such,  he 
said,  was  the  intendment  ot  the  law,  and  such  must  be  understood  to  be 
the  meaning  of  the  words,  unless  by  the  context  or  express  words  they 
plainly  appear  to  be  intended  otherwise,  of  which  he  did  not  find  suffi- 
cient proof  in  that  will.  But  if  Lord  Alvanley  could  not  find  such  proof 
in  that  case,  I  certainly  canriot  hnd  it  in  this,  thinking,  as  I  do.  that 
there  was  mucti  more  ot~evidence  tending  to  that  proof  iirthat  case  fhah 
there  is  m  this.  There  is,  indeed,  nothing  of  such  tendency  in  this  case, 
except  tUe  description  of  heir  in  the  plural.  I  have  already  ob- 
served, that  there  was  a  similar  inadaptation  of  the  expressions  used  to 
the  state  of  the  family  in  Holloway  v.  Holloway ;  but  in  the  present 
case  there  is,  I  think,  a  veiy  obvious  solution  of  the  apparent  incon- 
sistencies. 

Suppose  a  testator,  after  making  all  such  provisions  as  he  was  anx- 
ious about,  finds  that  in  certain  events  all  these  provisions  might  fail, 
and  having  no  other  object  in  view,  might  naturally  wish  that  the  law, 


196  CONSTRUCTION   OF  LIMITATIONS  (Part  2 

with  respect  to  the  disposition  of  his  property,  should  take  its  course. 
If  he  so  expressed  his  wish,  his  heir  or  next  of  kin  would  take  in  the 
event  of  the  provisions  failing ;  but  as  that  might  not  take  place  until 
some  distant  period,  it  would  be  uncertain  who  would,  at  such  time, 
stand  in  the  place  of  such  heirs ;  and  the  testator  might  therefore  very 
naturally  express  such  a  wish  in  the  terms  used  in  this  will ;  and  it  is 
not  at  all  inconsistent  with  such  an  expression  as  to  a  future  and  con- 
tingent interest,  that  he  should  give  the  residue  of  his  property,  being  a 
direct  gift,  to  his  daughter  by  name;  or  he  might  have  contemplated 
the  possibility  of  his  daughter's  death  in  his  own  lifetime. 

Since  Holloway  v.  Holloway  several  cases  have  occurred,  and  par- 
ticularly Jones  V.  Colbeck,  8  Ves.  38,  and  Miller  v.  Eaton,  Sir  Geo. 
Cooper,  272,  which,  it  might  have  been  supposed,  would  have  received 
a  decision  different  from  that  which  Sir  W.  Grant  pronounced  upon 
the  authority  of  Holloway  v.  Holloway ;  but  in  none  of  those  cases  do 
I  find  any  disapprobation  expressed  at  that  decision,  or  any  intention 
entertained  of  overruling  it;  but  in  all,  distinctions  are  taken,  which, 
whether  tenable  or  not,  leave  that  authority  untouched :  yet  in  none  of 
these  is  the  claim  of  the  heir  at  the  death  supported  by  circumstances 
so  strong  as  are  to  be  found  in  the  present  case. 

There  is,  I  think,  no  ground  for  the  claim  of  the  heir  or  next  of  kin 
to  the  exclustmr-gf' the  daughter  ;'~arKi~slie  fillihg  the~ctTaracters~Both 
of  ITeTr  and  next  of  km^  no""q[uesrion  arise^as~td  wKetHer  she_took  the 
fund  in  tlie"one~cliaracter  or  in  thfi-Qther ;  I  therefore  think  the  decree 
righlrrand  thaf^e  appeals  must  be  dismissed  with  costs.^ 

2  Accord:  Bird  v.  Luckie,  8  Hare,  301 ;  Eawlinson  v.  Wass.  9  Hare,  673; 
Wrightson  v.  Macaiilay,  14  Meeson  &  W.  214 ;  In  re  Frith ;  Hindson  v. 
Wood,  85  L.  T.  R.  45.5 ;  Rand  v.  Butler,  48  Conn.  293 ;  Stokes  v.  Van  AVyck, 
83  Va.  724,  3  S.  E.  387. 

Contra:  Pinkham  v.  Blair,  57  N.  H.  226  (1876);  Johnson  v.  Askey,  190  111. 
58,  60  N.  E.  76 ;  Bond  v.  Moore,  236  111.  576,  86  N.  E.  386,  19  L.  R.  A.  (N.  S.) 
540 ;  Farso  v.  Miller,  150  Mass.  225,  22  N.  E.  1003,  5  L.  R.  A.  690 ;  Heard  v. 
Read,  169  Mass.  216,  47  N.  E.  778;  Delaney  v.  McCormack,  88  N.  Y.  174; 
Tyler  v.  Theilig,  124  Oa.  204,  52  S.  E.  606. 

Suppose,  after  an  absolute  interest  to  A.,  there  is  a  gift  over  to  the  testator's 
heirs.  Welch  v.  Brimmer,  109  Mass.  204,  47  N.  E.  699  (1S97) ;  Doe  v.  Frost, 
3  Barn.  &  Aid.  546 ;  De  Wolf  v.  Middleton,  18  R.  I.  810,  26  Atl.  44,  31  Atl.  271, 
31  L.  R.  A.  146 ;    Burton  v.  Gagnon,  180  111.  345,  54  N.  E.  279. 


Ch.  3)  "survivor"  construed  vs.  "other"  197 

CHAPTER  III 
"SURVIVOR"  CONSTRUED  vs.  "OTHER" 


HARMAN  V.  DICKENSON. 
(Court  of  Chancery,  17S1.     1  Brown,  Ch.  Cas.  91.) 

A  bequest  to  two  daughters  of  the  testator,  and  if  one  should  die 
without  issue,  then  to  the  surviving  daughter  and  her  issue.  One  of 
the  daughters  married  and  died,  leaving  issue ;  then  the  unmarried 
daughter  died. 

Lord  Chancellor  [Thurlow]  held  that  the  money  went  to  the 
issue  of  the  married  daughter,  although  she  did  not  survive  her  sister.^ 

1  The  statement  of  this  case  is  so  very  short  and  inaccurate,  that  it  seems 
to  require  to  be  entirely  new  modelled.  An  exposition  of  it,  therefore,  from 
the  Registrar's  book,  may  be  desirable: 

The  testator  vested  a  sum  of  £10,000  New  South  Sea  Annuities  in  trustees^, 
with  directions  to  suffer  each  of  his  two  granddajj^hters^  A.  and  B.,  to  re- 
ceive  the  dividends  and  lut>'resr"to  Ul'ise  on  £ouOO  part  thereof,  for  her  sep- 
arate  use;  and,  atter_thelclccease  of  each  of  such  granddaughters,  and  when 
and  as  each  of  them  should  hapi>en  to  die,  to  transfer  and  assign  £5000  part 
of  the  said  £10,000  New  South  Sea  Annuities,  unto  and  among  such  one  or 
mjoreof  the  children  of  each  granddaughter  so  happening  to  die,  who  should 
be~TTviug"anier  decease,  in  such  sharesT^c,  as  his  said  granddaughter  so 
dying  should  direct,  &c. ;  and  in  default  thereof,  then  in  trust  to  assign, 
transfer,  pay,  and  dispose  of  the  said  £5000  and  the  dividends  thereof,  unto 
or  equally  among  all  and  every  the  children  of  his  granddaughters  so  dying, 
which  should  be  living  at  her  decease,  in  equal  proportions,  «S:c. ;  the  shares 
to  be  transferred  to  them  at  twenty-one,  and  the  interest,  in  the  meantime, 
for  their  maintenance;  but  in  case  either  of  his  granddaughters  should  die 
without  leaving  issue,  or  that  sucn  issiie^  should  all  die  before  their  shares 
should  become  transferable  respectively  as  aforesaid,  then  the  £5000  so  in- 
tended for  the  children  of  such  granddaughters  so  dying  without  issue,  or 
failing  issue  as  aforesaid,  and  the  dividends  thereof  should  go  and  be  paid, 
and  transferred,  &c.,  in  manner  following,  viz.,  the  yearly  dividends  to  such 
i^arviving  granddaughter  for_her_own  use  for  life,  and  thepriucipal  to  go, 
survive  anti  accrue,  and  De  transferred  to  the  child  or  children  of  any_of  such 
surviving  granddaughters,  in  the  same  manner,  &c.,  and  subject  to  suT-h  pow- 
er  of 'dlhiLiibuliuu  us  were  thereinbefore  mentioned,  concerning  his  or  their 
original  share  of  the  £10.000  New  South  Sea  Annuities  intended  for  him,  her, 
or  them,  after  the  decease  of  his,  her,  or  their  parents.  And  in  case  of  the 
death  of  both  his  said  granddaughters,  .withjout  leaving  issue  of  their  or  ner 
bodies,  or  the  deatn  ot  sucn  issue  betore  their  share  should  become  payable, 
that  then  the  trustees  should  transfer  the  said  £10,000  untd,  and  ectually  be- 
tween two  of  his  tefetator's  grandsons,  therein  named. 

A.,  one  of  the  granddaughters,  married,  and  died  in  her  sister's  lifetime, 
leaving  issue;    then  B.,  the  other  granddaughter,  died  unmarried. 

The  bill  was  filed  on  behalf  of  the  infant  children  of  A. 

The  Lord  Chancellor  held,  on  the  clear  manifest  intention,  that  the  whole 
fund  went  to  the  issue  of  A.,  the  married  daughter,  although  she  did  not 
survive  her  sister ;  and  declared  that  the  plaintiffs,  the  infants,  were  entitled 
to  the  two  sums  of  £5000  and  £5000,  New  South  Sea  Annuities,  subject  to  the 
contingencies  in  the  will  of  the  testator  concerning  the  same. — Belt. 

Accord:  (1)  Where  life  interests  are  given  to  several  with  a  remainder  to 
the  issue  of  each  tenant  for  life,  with  a  gift  over  on  the  death  of  any  tenant 


198  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

HARRISON  V.  HARRISON. 

(Chancery  Division,  1901.     [1901]  2  Ch.  136.) 

This  was  a  petition  by  the  now  sole  trustee  of  the  will  and  seven 
codicils  of  Benson  Harrison,  the  testator  in  this  cause,  who  died  in 
November,  1863.  The  object  of  the  petition  was  to  obtain  the  judg- 
ment of  the  court  as  to  who,  upon  the  proper  construction  of  the  will 
and  codicils,  became  entitled  on  the  recent  death  of  Benson  Harrison,  a 
son  of  the  testator,  to  a  share  of  personal  estate  in  which  Benson  Har- 
rison was  entitled  to  a  life  interest. 

The  testator  had  three  sons,  Matthew  Benson  Harrison,  Words- 
worth Harrison,  and  Benson  Harrison,  and  two  daughters,  Mrs.  Dob- 
son  and  Mrs.  Bollard,  who  all  survived  him. 

The  testator  bequeathed  his  eight  and  a  half  sixteenth  shares  in  the 
business  of  Harrison,  Ainslie  &  Co.  from  the  1st  day  of  January,  1864, 
upon  trust  to  carry  on  the  business  in  conjunction  with  the  other  part- 
ners, and  stand  possessed  of  three  and  a  half  of  the  shares  upon  trust, 
subject  to  the  deduction  of  a  sum  of  i250  a  year  during  the  life  of  his 
son  Matthew  Benson  Harrison,  to  pay  the  whole  or  any  part  of  the 

for  life  without  issue  to  the  surviving  tenants  for  life  for  their  lives,  and  then 
to  their  issue  with  an  ultimate  gift  over  if  all  the  tenants  for  life  die  with- 
out issue.  Cases  where  realty  involved:  Cole  v.  Sewell,  4  D.  &  War.  1;  2 
H.  L.  186;  Askew  v.  Askew,  57  K  J.  Ch.  629.  Cases  where  personalty  in- 
volved: Lowe  V.  Land,  1  Jur.  377;  In  re  Keep's  Will,  32  Beav.  122;  Badger 
V.  Gregory,  8  Eq.  78;  Waite  v.  Littlewood,  8  Ch.  70;  Wake  v.  Varah,  2  Ch.- 
Div.  348 ;  Garland  v.  Smyth  [1904]  1  Ir.  35 ;  Cooper  v.  Cooper,  7  Houst.  (Del.) 
488,  31  Atl.  1043. 

(2)  Where  life  interests  are  given  to  several  with  a  remainder  to  the  issue 
of  each  tenant  for  life,  with  a  gift  over  on  the  death  of  any  tenant  for  life 
without  issue,  to  the  surviving  tenants  for  life  in  like  manner  as  the  original 
shares  are  given,  with  an  ultimate  gift  over  if  all  the  tenants  for  life  die 
without  issue.  Cases  where  real  estate  involved:  In  re  Tharp's  Estate,  1 
De  J.  &  S.  453 ;  In  re  Row's  Estate.  43  L.  J.  Ch.  347.  Cases  where  personal- 
ty involved:  Holland  v.  Alsop,  29  Beav.  498;  Hurry  v.  Morgan,  3  Eq.  152; 
In  re  Palmer's  Trusts,  19  Eq.  320  (ultimate  gift  over  not  mentioned). 

In  Waite  v.  Littlewood,  L.  R.  8  Ch.  70,  73  (1872),  supra,  Selborne,  L.  C, 
said:  "I  do  not  entirely  assent  to  language  which  is  to  he  found  pen'ading 
almost  all  the  cases  upon  questions  of  this  kind,  that  the  question  is  whether 
the  word  'survivor'  is  to  be  read  'other.'  I  think  there  is  certainly  a  very 
strong  probability  that  any  one  using  the  word  'survivor'  does  not  precisely 
mean  'other'  by  it,  but  has  in  his  mind  some  idea  of  survivorship;  and  if  the 
question  is  simply  whether  yon  are  to  turn  it  into  'other,'  and  say  it  is  used 
merely  by  mistake  for  the  word  'other,'  which  is  the  true  word  to  express  the 
testator's  meaning,  there  is  undoubtedly  a  strong  onus  probandi  cast  upon 
any  one  who  would  do  that  violence  to  the  literal  meaning  of  the  word.  It 
would  be  a  strange  thing  to  liold  that  so  many  testators  were  in  the  habit  of 
using  the  word  'survivor'  when  they  simply  meant  'other.'  Generally  speak- 
ing, a  reason  of  some  kind  will  Ije  found  for  the  use  of  the  word  'survivor' 
where  it  occurs,  though  it  may  very  possibly  be,  and  often  in  these  cases  is, 
an  imperfect  expression,  not  expressing  completely  and  exhaustively  the 
whole  intention.  If  no  such  explanation  can  be  suggested,  it  is  a  strong  argu- 
ment against  any  construction  that  would  reject  the  word  in  its  proi)er  and 
primary  meaning  altogether,  and  substitute  a  word  which  has  a  different 
meaning." 


Ch.  3)  "survivor"  construed  vs.  "other"  199 

income  and  accumulations  of  income  to  Matthew  Benson  Harrison 
during  his  life  at  their  discretion,  and  after  his  decease  to  hold  the  three 
and  a  half  shares^arid^accumulations  of  proceeds  on  thejxusta.id££lared 
for  the  children  and  remoter  issue  of  the  testator's  son  Matthew  Ben^ 
son  .Harnson  (such  issiie  to  be  born  in  his  lifetime). 

The  testator  by  his  will  settled  in  the  same  way  three  shares  (altered 
by  codicil  to  two  shares)  in  the  business  on  his  son  Wordsworth  Harri- 
son, and  the  other  two  shares  (altered  by  codicil  to  three  shares)  on 
his  son  Benson  Harrison. 

After  these  gifts  the  will  proceeded :  "And  in  case  any  of  them 
the^aid  Matthew  Benson  Harrison,  Wordsworth  Harrison,  and  Ben- 
sorLHarrison  respectively  shaircHeTarid^io'chlld^or  other  issue  of  such 
of  them  so  dying  shall  acquire  a  vested  interest  in  the  shares  iier£r 
by  settled  upon_them  respectively  under  the  trusts  or  powers  afore- 
sai^,  r  direct  that  the_respectiv£^sliares  oi_^uch— oi^my  said  sons  as 
shall  so  die,  or  so  much  thereof  as  sliall  not  have  been  applied  under 
the_j)owers  herein  contained,  and  the  annual  income  thereof,  shall  be 
held  for  the  benefit  of  the, survivors  or  survivor  of  theiTLjriy_sn.jd  sons 
an^their  or  his  respective  issue,  in  equal  shares  upon  such  and  the 
like  trusts,  and  to  and  for  such  and  the  like  interests  and  purposes,  and 
with,  under,  and  subject  to  such  and  the  like  powers,  provisos,  and 
declarations  as  are  herein  declared  with  respect  to  their  respective 
original  share  or  shares." 

The  testator  by  his  will  also  settled  pecuniary  legacies  and  one- 
third  of  his  residue  (altered  by  codicil  to  one-third  of  his  ultimate  res- 
idue) upon  each  of  his  three  sons  and  their  issue  by  reference  to  the 
settlements  of  the  shares  of  his  business,  with  gifts  over  in  the  case  of 
the  death  of  each  son  without  issue  who  should  take  a  vested  interest 
in  favor  of  the  survivors  or  survivor  and  their  issue.  The  legacy  in 
favor  of  Benson  Harrison  and  his  issue  was  in  the  following  terms : 
"And  as  to  the  sum  of  £26,000,  the  remaining  part  of  the  said  sum  of 
i66,000,  and  also  as  to  one  other  third  part  of  the  ultimate  residue 
of  my  said  personal  estate,  I  direct  my  said  trustees  or  trustee  for  the 
time  being  to  stand  possessed  thereof  for  the  like  interests  and  purposes 
and  with  the  like  powers  in  favor  or  for  the  benefit  of  my  said  son 
Benson  Harrison  and  his  children  and  other  issue  (such  issue  to  be  born 
in  his  lifetime),  and  with  the  like  discretionary  powers  as  to  the  pay- 
ment of  the  interest  or  other  annual  produce  thereof  to  my  said  son 
Benson  Harrison  during  his  life  as  are  hereinbefore  declared  with  re- 
spect to  the  shares  in  my  said  partnership  businesses  hereby  .settled  upon 
him  and  them ;  and  in  case  no  child  or  other  issue  of  my  said  son 
Benson  Harrison  shall  acquire  a  vested  interest  in  the  said  sum  of 
£26,000  and  his  said  share  in  my  residuary  personal  estate  under  the 
trusts  or  powers  hereinbefore  contained  or  referred  to,  I  direct  that  the 
same  or  so  much  thereof  as  shall  not  be  applied  under  the  said  pow- 
ers and  the  annual  income  thereof  shall  be  held  in  trust  for  my  sur- 
viving sons  in  equal  proportions,  upon  the  like  trusts  and  for  the  like 


200  CONSTRUCTION   OF   LIMITATIONS  (Part  2 

intents  and  purposes,  with  the  Hke  powers,  in  favor  of  my  said  sons 
and  their  children  or  other  issue,  and  with  the  hke  discretionary  pow- 
ers as  to  the  payment  of  the  interest  or  other  annual  produce  thereof 
to  them  during  their  respective  lives  as  hereinbefore  declared  with  re- 
spect to  their  respective  original  shares  in  the  said  sum  of  £66,000  and 
in  the  residue  of  my  said  personal  estate."  There  was  no  gift  over  in 
case  all  the  sons  died  and  had  no  issue  who  attained  vested  interests. 

The  testator's  sons  Matthew  Benson  Harrison  and  Wordsworth  Har- 
rison both  died  in  the  lifetime  of  their  brother  Benson  Harrison,  and 
left  issue  who  took  vested  interests  in  their  settled  shares  of  the  busi- 
nesses and  residue.  Benson  Harrison,  the  son,  never  had  a  child: 
he  was  now  dead.  The  question  raised  on  this  petition  was  whether 
his  share  accrued  to  the  shares  of  the  issue  of  his  deceased  brothers,  or 
whether  there  was  an  intestacy. 

CozEns-Hardy,  J,  This  petition  involves  the  construction  of  the 
will  and  codicils  of  Benson  Harrison,  who  died  in  1863.  He  had  three 
sons:  (1)  Matthew  Benson  Harrison,  who  died  in  January,  1879, 
having  had  three  children;  (2)  Wordsworth  Harrison,  who  died  in 
June,  1889,  having  had  five  children;  and  (3)  Benson  Harrison  the 
younger,  who  died  in  November,  1900,  without  issue.  Under  these  cir- 
cumstances the  question  arises  who  are  entitled  to  a  share  in  the  testa- 
tor's business  which  the  son  Benson  enjoyed  during  his  life,  and  also 
who  are  entitled  to  a  share  in  the  residue  which  he  likewise  enjoyed 
for  life.  [His  Lordship  read  the  material  parts  of  the  will,  and  con- 
tinued:] 

Now,  it  will  be  observed  that  there  is  no  gift  over  on  death  of  all 
three  sons  without  issue,  either  as  to  the  business  or~as~to  the  residue. 

On  behalf  of  the  clTiTdren  of  Matthew  Benson  and  Wordsworth,  it 
has  "EeeiTargued  that  th^y  take  althougE"  their  parents  did  not  survive 
Benson.  This  contention  is  bas^dTayo^n"tEe"^rouhd"  that  thefe~is  suffi- 
clent  matter  in^this  will  to  justify  the  court  in  readThg^"surviving"  as 
meaning  "other,"  or  (b)  on  the  ground  that  "surviving"  has  the  mean- 
ing'oT^Wrpital"  survivorship,  oT_(c)_on  the  ground  that  as  a  matter  of 
construction  the  gifts  are_ to  the  surviving_sons  for  life_and~to  the 
children  or  issue  of  the  sons  whether  such  sons  survive  or  not.  ~ 

On  behalf  of  theHex't  ofTdrTiFhas  been^argued~^cI7tHafTliere  is  no 
justification  for  departing  from  the  plain  meaning  of  the  language 
used,  and  that  there  is  no  gift  except  to  the  children  or  issue  of  sons 
who  survived. 

Reading  the  will  without  reference  to  authorities,  I  think  iLis__rea- 
sonably  clear  that  tlie_only_chi]dren_o^jssue  who  can  take  Benson's 
share  are'cTiiTdren  or  issue_of^such  of  his  Two  brothers  as" might  sur- 
vive hjm,  and  that,  as  neither  of  the  two  brothers_survived  hiniTHiere 
are  no  children  or  issue  who  can  take.  It  is  not  for  me  to  guess  wheth- 
er this  is  what  the  testator  would  have  desired.  My  duty  is  to  construe 
the  language  he  has  used. 


Ch.  3)  "sukvivor"  construed  vs.  "other"  201 

But  in  a  will  of  this  nature  it  is  not  possible  wholly  to  disregard  prior 
decisions  so  far  as  they  lay  down  principles,  and  my  attention  has  been 
called,  and  properly  called,  to  a  great  many  authorities.  I  do  not  pro- 
pose to  discuss  them  at  length,  more  particularly  as  the  wit  of  man 
cannot  reconcile  them  all.  It  is  sufficient  for  me  to  say  that  I  cannot 
adopt  the  view  that  "surviving"  means  "other,"  or  means  "surviving 
in  person  or  in  descendants,"  without  running  counter  to  Beckwith  v. 
Beckwith,  46  L.  J.  (Ch.)  97;  25  W.  R.  282,  Lucena  v.  Lucena,  7  Ch. 
D.  255;  In  re  Horner's  Estate  (1881)  19  Ch.  D.  186,  and  In  re  Benn, 
29  Ch.  D.  839,  three  of  which  are  decisions  of  the  Court  of  Appeal. 

1  cannot,  however,  pass  over  so  lightly  that  which  I  have  called 
the  third  argument  on  the  part  of  the  children.  It  is  supported  by, 
if  not  based  upon,  the  considered  judgment  of  Kay,  J.,  in  In  re  Bow- 
roaiL.  41  Ch.  D.  531.  After  dealing  with  the  particular  will  before 
him,  the  learned  judge  lays  down  three  propositions  as  correctly  sum- 
ming up  the  law  in  cases  of  this  nature : 

"It  seems  to  me  that  the  decisions  establish  the  following  propo- 
sitions : 

"Where  the  gift  is  to  A.,  B.,  and  C,  equally  for  their  respective    i 
lives,  and  attei^the  death  of  any  to  his  children,  but  il"any  die  without 
children~to  the  survivors   for  IJTe  witli  remainder  to  their  children, 
only  children  of  survivors  can  take  under  the  giftover. 

^TTlo  similar  words  there  is  added  a  limitation  over  if  all  the  ten-    ^ 
antsfor  life  die  without  children,  then  the  children  of  a  predeceased 
te^iant  for  life  participate  in  the  share  of  one  wlio  dies  without  chil- 
dren after  their  parent.  ,- 

"They_also_participate^although  there  is  jio  general  gift  over,  where    5    i  '^  ^^   ^^ 
the  limitations  are  to  A.,  B.,  and  C.  equally  for  their  respective  lives,  /Lj;    c^-^^l.   1 

and  aTter  the  death  qf^any  to^hTs  children,  andTiFany  die  witTiout  chil-  "^ 

dren  to  the  surviving  tenants  for  life  and  tliei^j'es^ective-childrpn,  ip 
the  same  manner  as  theironginalshares." 

OftlTese  three  pro"positions  the  tirst  and  second  seem  to  be  well  es- 
tablished, and  I  adopt  them  without  hesitation.  The  third  propo- 
sition, which  covers  the  present  case,  has  caused  me  considerable  diffi- 
culty. Kay,  J.,  has  stated  this  proposition  as  the  result  of  the  authori- 
ties, and  it  is  necessary  to  consider  how  far  the  authorities  cited  bear 
out  this  view  and  how  far  those  authorities  have  been  overruled.  They 
are  Hodge  v.  Foot,  34  Beav.  349,  In  re  Arnold's  Trusts  (1870)  L.  R. 
10  Eq.  252,  and  In  re  Walker's  Estate,  12  Ch.  D.  205.- 

Now,  in  Hodge  v.  Foot,  34  Beav.  349,  Sir  John  Romilly  proceeded 
partly  upon  the  "scope  and  object"  of  the  will,  and  the  circumstance 
that  an  intestacy  would  result  unless  "surviving"  was  read  as  "other." 
It  must,  I  think,  be  admitted  that  those  reasons  cannot  now  be  accept- 

2  See  also  Balch  v.  Pickering,  154  Mass.  363,  2S  N.  E.  203,  14  L.  R.  A.  125 ; 
Fox's  Estate.  222  Pa.  lOS,  70  Atl.  954;  Carter  v.  Bloodgood's  Exr's,  3  Sandf. 
Ch.  (N.  Y.)  293. 


202  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

ed:  see  the  observation  of  Fry,  L.  J.,  in  In  re  Benn,  29  Ch.  D.  842. 
Sir  John  Romilly  also  reHed  upon  Harman  v.  Dickenson  (1781)  1  Bro. 

C.  C.  91,  where,  however,  there  was  a  general  gift  over  such  as  would 
bring  the  case  within  Kay,  J.'s  second  proposition,  and  upon  Hawkins 
V.  Hamerton,  16  Sim.  410.  In  that  case  Shadwell,  V.  C,  did  not  lay 
down  any  general  principle.  There  was  an  express  direction  that 
"after  the  decease  of  my  said  son  and  daughters,  then  I  will  and  direct 
that  the  whole  of  such  residue  *  *  *  shall  be  paid  and  divided 
amongst  all  and  every  the  children  of  my  said  son  and  daughters  in 
equal  parts."  The  class  was  not  limited  to  children  of  such  of  the  son 
and  daughters  as  should  survive  the  wife.  And  the  subsequent,  and 
apparently  unnecessary,  clause,  that  in  case  any  of  the  son  and  daugh- 
ters should  die  without  leaving  issue,  then  the  share  given  to  him,  her, 
or  them  so  dying  should  go  and  be  divided  "amongst  the  survivor  or 
survivors  of  my  said  children  and  their  issue  in  the  like  equal  parts, 
shares  and  proportions"  was  construed  so  as  to  make  it  consistent  with 
the  former  gift.  This  is  the  view  taken  of  that  case  by  Wood,  V.  C,  in 
In  re  Corbett's  Trusts,  Joh.  591. 

In  In  re  Arnold's  Trusts,  h-  R.  10  Eq.  252,  Malins,  V.  C,  proceed- 
ed upon  a  view  which  has  since  been  distinctly  repudiated  by  the  Court 
of  Appeal.  I  may  refer  to  Wake  v.  Varah,  2  Ch.  D.  348.  I  think  In 
re  Arnold's  Trusts,  L.  R.  10  Eq.  252,  cannot  be  regarded  as  a  binding 
authority :   see  the  observation  of  Lindley,  L.  J.,  in  In  re  Benn,  29  Ch. 

D.  841.  In  re  Walker's  Estate,  12  Ch.  D.  205,  was  a  decision  of  Hall, 
V.  C. ;  but  in  the  subsequent  case  of  In  re  Horner's  Estate,  19  Ch.  D. 
186,  the  Vice-Chancellor  in  effect  said  (Ibid.  191)  that  his  earlier  deci- 
sion could  not  be  supported  having  regard  to  B^ckwith  v.  Beckwith, 
46  L.  J.  (Ch.)  97,  25  W.  R.  282.  It  is,  I  think,  not  incorrect  to  say 
that  not  one  of  the  three  decisions  relied  upon  by  Kay,  J.,  as  warrant- 
ing his  third  proposition  can  now  be  regarded  as  satisfactory,  or  as 
laying  down  any  principle  which  a  judge  of  co-ordinate  jurisdiction 
ought  to  follow. 

Against  these  decisions  there  is  a  considerable  body  of  authority. 
I  refer  especially  to  Milsom  v.  Awdry,  5  Ves.  465,  5  R.  R.  102.  There 
there  was  a  residuary  bequest  to  the  testator's  nephews  and  nieces 
equally  per  stirpes  for  their  lives,  and  after  the  death  of  either  of  his 
said  nephews  and  nieces  his  or  her  share  to  be  paid  equally  unto  and 
among  his  or  her  children.  And  if  any  of  his  said  nephews  and  nieces 
should  die  without  leaving  any  child,  then  the  share  or  shares  of  him, 
her,  or  them  so  dying  "should  go  to  and  among  the  survivors  or  sur- 
vivor of  them  in  manner  aforesaid."  The  Master  of  the  Rolls  held 
that  the  words  "in  manner  aforesaid"  meant  in  the  same  manner  as  the 
original  share — namely,  for  life  only,  and  that  the  share  of  each,  both 
original  and  accruing,  went  to  the  children,  if  any.  This  seems  to  be 
precisely  the  case  contemplated  by  Jay,  J.,  third  proposition.  But  the 
Master  of  the  Rolls  held  that  on  the  death  of  the  last  nephew  without 


Ch.  3)  "survivor"  construed  vs.  "other"  203 

issue  there  would  be  an  intestacy,  although  there  were  children  of  de- 
ceased nephews  and  nieces.  Milsom  v.  Awdry,  5  Ves.  465,  5  R.  R.  102, 
was  approved  by  Wood,  V.  C,  in  In  re  Corbett's  Trusts,  Joh.  591, 
which  is  indeed  a  strong  decision  in  the  same  sense.  It  is  true  that 
Malins,  V.  C,  in  In  re  Arnold's  Trusts,  L.  R.  10  Eq.  252,  256,  said 
he  was  satisfied  that  Milsom  v.  Awdry,  5  Ves.  465,  5  R.  R.  102,  was 
"contrary  to  a  long  line  of  subsequent  authorities,  and  that  it  is  no  lon- 
ger a  binding  authority."  But  for  the  reasons  above  stated,  and  hav- 
ing regard  to  the  judgments  of  the  Court  of  Appeal,  I  am  not  able  to 
accept  this  view.  Milsom  v.  Awdry,  5  Ves.  465,  5  R.  R.  102,  must,  I 
tliink,  be  considered  as  good  law. 

It  follows  that  in  my  opinion  the  third  proposition  in  In  re  Bowman. 
41  Ch.  D.  525,  is  not  warranted  by  the  authorities,  and  I  must  decline 
to~Iollow  iT.  In  my^vtew^TTlriakes  no  difiference  whether  the  giftjpf 
an  accruing  share  is  to  the  survivors  foiMife  with  remainder  to  their 
children  expressly,  or  is  to  the  survivors  and  their  children  by  refer- 
ence~To"the  limitations  oTTlTe  onginaTshares. 

I  must  therefore  declare  that  on  the  death  of  Benson  without  issue, 
his  share  in  the  business  fell  into  the  residue,  and  that  there  is  an  in- 
testacy as  to  his  share  of  residue  thus  augmented. 

This  declaration  will  probably  suffice  to  enable  minutes  to  be  pre- 
pared for  effecting  the  division  of  the  funds. ^ 

8  Approved  Inderwick  v.  Tatchell,  [1901]  2  Cli.  (O.  A.)  738. 


204  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

CHAPTER  IV 
VESTING  OF  LEGACIES 


CLOBBERIE'S  CASE. 

(Court  of  Chancery,  1677.    2  Vent.  342.)  i 

In  one  Clobberie's  Case  it  was  held,  that  where  one  bequeathed  a 
sum  of  money  to  a  woman,  at  her  age  of  twenty-one  years,  or  day  of 
marriage,  tobepaid  unto  her  with  interest,  and  she  dir'^"^pf'^'"p  pifber, 
that  the  money  should  go  to  her  executor ;  and  was  so  decreed  by  my 
Lord  Chanceli^or  Fynch. 

But  he  said,  if  money  were  bequeathed  to  nne^f  his  age  of  twenty- 
one  years ;  if  he  dies  before  that  age  the  money  is  lost.^ 

On  the  other  side,  if_money  be  given  to  one,  to  be  paid  at  the  age 
of  twenty-one  years ;  though,  if  the  party  dies  before,  it  shall  go  to  the 
executors.^  "  "  ' 

1  The  decree  was  confirmed  in  the  House  of  Lords.  S.  c,  sub  nom.  Cloberry 
V.  Lampen,  Freem.  C.  C.  24. 

2  So,  where  the  gift  is  contained  only  in  the  direction  to  pay  at  the  expira- 
tion of  a  certain  number  of  years  after  the  testator's  death,  the  gift  is  con- 
tingent on  the  leaatee  surviving  that  time.  Smell  v.  Dee,  2  Salli.  415 ;  Bruce 
V.  Charlton,  13  Sim.  65;  In  re  Eve,  93  L.  T.  R.  235;  In  re  Cartledge,  29 
Beav.  583 ;  Hall  v.  Terrv,  1  Atk.  502 ;  In  re  Kountz's  Estate,  213  Pa.  390.  62 
Atl.  1103,  3  L.  R.  A.  (N.  S.)  639.  5  Ann.  Cas.  427 ;  Id.,  213  Pa.  399,  62  Atl. 
1106 ;  Andrews  t.  Lincoln.  95  Me.  541.  50  Atl.  898,  56  L.  R.  A.  103 ;  Reid  v. 
Voorhees,  216  111.  236,  74  N.  E.  804,  3  Ann.  Cas.  940. 

Fearne  on  Contingent  Remainders,  p.  1,  Butler's  note:  "A.  convoys  land 
by  lease  and  release  to  B.  and  his  heirs,  to  the  use  of  C.  and  his  heirs,  from 
the  1st  day  of  tbe  following  January,  or  devises  land  to  C.  and  his  heirs,  from 
the  1st  day  of  January  next  after  the  testator's  decease.  In  the  first  case, 
the  fee  remains  in  A. ;  in  the  second,  it  descends  to  the  heir  at  law  of  A. 
till  the  day  arrives  upon  which  C.  is  to  be  entitled  to  the  land,  for  an  estate 
in  fee  simple  in  possession.  In  the  meantime,  C.  has  not  an  estate  in  posses- 
sion, as  he  has  not  a  right  of  present  enjoyment;  he  has  not  an  interest  in 
remainder,  as  the  limitation  to  him  depends  on  the  estate  in  fee  simple,  which 
in  the  first  case  remains  in  A.,  and  in  the  second  descends  to  A.'s  heir;  he 
has  not  a  contingent  interest,  as  he  is  a  person  in  being  and  ascertained,  and 
the  event,  on  which  the  limitation  to  him  dei>ends,  is  certain ;  and  he  has  not 
a  vested  estate,  as  the  whole  fee  is  vested  in  A.  or  his  heirs.  He  therefore 
has  no  estate,  the  limitation  is  executory,  and  confers  on  him  and  his  heirs 
a  certain  fixed  right  to  an  estate  in  possession  at  a  future  period." 

3  Accord :  In  re  Bartholomew,  1  Mac.  &  G.  354 ;  Shrimpton  v.  Shrimpton,  31 
B.    425 ;    Maher  v.  Maher,  1  L.  R.  Ir.  22 ;    Chaffers  v.  Abell,  3  Jur.  577. 

But  the  executor  or  administrator  of  the  legatee  shall  not  have  the  legacy 
until  the  legatee  would  have  reached  the  time  specified  if  he  had  lived. 
Rodin  V.  Smith,  Amb.  588  (1744) ;  Maher  v.  Maher,  1  L.  R.  Ir.  22  (1877). 
Semble,  except  where  the  whole  interest  of  the  legacy  is  given  in  the  mean- 
time.   Rodin  V.  Smith,  supra. 

In  Furness  v.  Fox,  1  Cush.  (Mass.)  134,  48  Am.  Dec.  593  (1848),  the  testator 
provided  as  follows:  "In  the  first  place  I  give  and  bequeath  to  my  grand- 
son, John  William  Furness,  son  of  my  son  John  C.  Furness  deceased,  five  hun- 
dred dollars,  if  he  shall  arrive  to  the  age  of  twenty-one  years,  then  to  be  paid 


Ch.  4)  VESTING  OF   LEGACIES  205 

CHANDOS  V.  TALBOT. 

(Court  of  Chancery,  1731.    2  P.  Wms.  601.)  * 

The  last  question  was  touching  the  legacy  of  £500  which  by  the  first 
part  of  the  will  of  Sir  Thomas  Doleman  was  given  to  his  nephew  Lewis 
Doleman,  to  be  paid  at  his  age  of  twenty-five,  and  so  a  vested  legacy  as 
to  the  personal  estate,^  after  which  the  testator's  real  estate  was  charged 
therewith;  and  in  regard  Lewis  Doleman  died  an  infant  of  about  the 
age  of  fifteen,  and  before  the  time  appointed  for  the  payment,  it  was  in- 
sisted that  this  being  a  legacy  charged  upon  land,  did  sink  for  the  bene- 
fit of  the  hseres  f  actus  or  natus  ;  that  here  the  premises  chargeable  with 

over  to  him  by  my  executor  hereinafter  named."  "All  the  rest  residue  and 
remainder  of  my  estate  both  real  and  personal  of  every  sort  and  description 
and  wherever  situated  or  being  I  give  devise  and  bequeath  to  my  children" 
(naming  five  persons)  "their  heirs  and  assigns  forever  to  be  equally  divided 
l)etween  them."  The  legatee,  John  William  Fnrness,  died  before  arriving 
at  the  age  of  21  years,  and  the  executor  sought  to  recover  the  money  which 
had  been  paid  over  to  him.  There  was  a  verdict  for  the  plaintiff,  but  excep- 
tions were  allowed  atid  a  new  trial  ordered,  the  court  holding  that  the  legacy 
was  not  contingent  on  the  legatee  surviving  21.  Metcalf,  J.,  said:  "We  have, 
therefore,  only  to  inquire  whether,  in  the  case  before  us,  the  words,  "if  he 
shall  arrive  at  the  age  of  twenty-one  years,"  relate  to  the  words  which  pre- 
cede, or  to  the  words  which  follow  them;  or,  in  other  language,  whether  the 
arrival  of  the  legatee  at  the  age  of  twenty-one  years  is  a  condition  precedent 
to  the  gift  of  the  money,  or  only  to  the  payment  of  it  into  his  hands.  And 
we  are  of  opinion  that  the  testator  meant  to  make  an  immediate  be<;iuest  to 
the  gi-andson.  as  the  representative  of  his  deceased  father,  but  that  the  mon- 
ey should  not  go  into  his  hands,  during  his  minority.  '  This  seems  to  us  to  be 
the  most  natural  construction  of  the  mei'e  words  of  the  bequest,  although  the 
testator's  meaning  is  obscured  by  the  unfortunate  collocation  of  those  words, 
and  the  inartificial  punctuation  of  the  sentence.  We  are  somewhat  confirm- 
ed in  this  construction  by  the  only  other  devising  clause  in  the  testator's  will. 
After  the  bequest  to  his  grandson,  he  gave  all  the  residue  and  remainder  of 
his  property  to  his  five  children  who  were  then  alive,  to  be  equally  divided 
among  them,  without  any  limitation  over,  by  express  mention,  of  the  five  hun- 
dred dollars,  in  the  event  of  his  grandson's  dying  under  age.  It  is  true  that 
this  residuary  clause  would  have  passed  to  the  five  children  the  money  be- 
queathed to  the  grandson,  if  the  legacy  to  him  had  failed  of  effect ;  but  it  is 
hardly  probable  that  the  testator  knew  that  such  Avould  be  its  legal  operation." 

*  Only  part  of  the  case  is  here  given. 

5  See  In  re  Hudsous,  Dm.  &  Sugd.  6,  where  the  legacy  was  vested  so  far 
as  it  was  charged  upon  a  term. 

So,  if  interest  be  given  in  the  meantime,  that  will  not  vest  the  legacy  so  far 
as  it  is  charged  upon  land.  Gawler  v.  Standerwick,  2  Cox,  15.  But  see 
Murkin  v.  Phillipsou.  3  M.  &  K.  257. 

■"It  is  a  well-established  rule  as  to  portions  or  legacies  payable  out  of  lands, 
that  if  made  payable  at  a  certain  age,  a  marriage,  or  other  event  personal  to 
the  party  to  be  benefited,  and  such  party  die  before  that  time  arrive,  the 
portion  or  legacy  is  not  to  be  raised  out  of  the  land;  but  if  the  payment  be 
postponed  until  the  happening  of  an  event  not  referable  to  the  i^erson  of  the 
party  to  be  iHjnefited,  but  to  the  circumstances  of  the  estate  out  of  which  the 
portion  or  legacy  is  to  be  paid,  such  as  the  death  of  a  tenant  for  life,  then  it 
will  be  raisable  after  the  death  of  the  tenant  for  life,  although  the  term  out 
of  which  it  was  to  be  raised  had  not  arisen  in  consequence  of  the  party  to  be 
benefited  not  having  been  in  esse  at  the  time  of  the  death  of  the  tenant  for 
I'Jfe,  as  in  Emperor  v.  Rolfe,  1  Ves.  Sen.  20S ;  Cholmondley  v.  Meyrick,  1  Eden, 
7'^.  85;  and  many  other  cases."  Per  Lord  Cottenham,  C.,  in  Evans  v.  Scott, 
1  H.  L.  C.  43,  57  (1847). 


206  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

this  legacy,  amongst  other  parts  of  the  real  estate  of  the  testator,  were 
devised  to  trustees  and  their  heirs,  upon  the  trusts  and  to  the  uses 
hereinbefore  mentioned ;  it  was  true  in  case  of  a  bequest  of  any  sum 
of  money  out  of  a  personal  estate  to  one,  to  be  paid  at  his  age  of  twen- 
ty-one or  twenty-five,  if  the  legatee  dies  before  the  time  of  payment, 
it  becomes  notwithstanding  a  vested  legacy  transmissible  to  executors 
or  administrators;  but  where  such  legacy  is  devised  out  of  a  real  es- 
tate, and  the  legatee  dies  before  the  time  appointed  for  payment,  there 
the  legacy  shall  sink  into  the  land ;  because  equity  will  not  load  an 
heir  for  the  benefit  of  an  executor  or  administrator. 

At  another  day,  this  cause  having  been  adjourned  in  order  to  search 
precedents,  the  Lord  Chancellor  [King]  said  he  had  looked  into  the 
case  of  Yates  and  Phettiplace  in  2  Vern.,  and  also  that  of  Jennings 
and  Lookes  [2  P.  Wms.  276] ,  both  which  came  fully  up  to  the  present 
case,  viz.,  that  where  the  personal  estate  was  not  sufficient,  and  the  real 
estate  in  failure  thereof  was  made  liable  to  answer  the  legacies,  in  case 
of  the  legatee's  dying  before  the  legacy  became  due,  the  charge  upon 
the  land  determined ;  that  it  seemed  but  a  very  slight  and  superficial 
diversity  between  a  legacy  given  at  twenty-one,  and  payable  at  twenty- 
one;  and  though  it  had  been  established  in  the  spiritual  court,  as  to 
legacies  given  out  of  a  personal  estate,  it  did  not  deserve  to  be  fa- 
vored or  countenanced,  where  the  legacy  is  charged  upon  land,  and  the 
infant  legatee  dies  before  t}venty-one,  or  before  the  time  when  the  leg- 
acy is  made  payable^  that  there  was  not  any  the  least  difference  between 
a  sum  of  money  charged  by  a  will  on  land,  payable  to  an  infant  at 
twenty-one,  and  where  such  charge  arises  by  a  deed.  That  the  authori- 
ties before  mentioned  show  there  is  no  difference  where  the  real  as  well 
as  the  personal  estate  is  charged,  for  in  such  case,  as  far  as  the  execu- 
tor  or  administrator  claims  out  of  the  latter,  he  shall  succeed  according 
to"~tHe  rule  of  that~coiIrt  where  these  things  are  determinabTer"even 
though  the  infant  legatee  dies  before  the  time  of  payment,  but  as^ar  as 
the  legacy  is  diarged  upon  the  land^^o_far  shall  it,  on  the  legatee's 
dytngljefore  the  legacy  becomes  payabTe,  jmk ;  and  this  beingthe  rure 
which  has  of  late  universally  prevailed,  be  the  legatee  a  child  or  a 
stranger,  it  would  be  of  the  most  dangerous  consequence,  and  disturb 
a  great  deal  of  property  for  him  to  break  into  it. 

Wherefore  he  thought  that  the  £500  legacy  payable  to  Lewis  Dole- 
man  at  twenty-five,  on  his  dying  before  that  time,  as  to  so  much  thereof 
as  was  payable  out  of  the  land,  must  sink.^ 

6  "I  have  often  heard  it  said,  that  the  reason  why  legacies,  &c.,  charged  ou 
land,  payable  at  a  future  day,  shall  not  be  raised,  if  the  legatee  dies  before 
the  day  of  payment,  though  it  is  otherwise  in  the  case  of  a  charge  on  the 
personal  estate,  is  this,  that  the  heir  is  a  favorite  of  a  court  of  equity,  and 
ought  to  have  the  preference  of  the  representative  of  a  legatee,  and  likewise 
that  the  court  will  go  as  far  as  they  can  in  keeping  the  real  estate  entire,  and 
as  free  from  encumbrances  as  possible. 

"But  I  think  the  court  has  never  gone  upon  such  reason,  but  the  true  rea- 
son I  take  to  be  this,  that  the  court  will  govern  themselves  as  far  as  is  con- 


Ch.  4)  VESTING  OP   LEGACIES  207 

ATKINS  V.  HICCOCKS. 

(Court  of  Chancery,  1737.    1  Atk.  500.) 

A  testator  devises  in  these  words,  "I  devise  to  my  daughter  Eliza^^ 
beth  Hiccocks,  the  surn  of^£200  to  bej^aid  her  at  the  time  of  herliTar^ 
riageT  or  withinTlhree  months  after,  jiiovided  she  marry  with  the  ap^ 
probatioiiof_my  twoTons  William  and  Saniuel^Hiccocks,  or  the  sur- 
vivor of  them ;  and  my  wnll  is,  that  my  said  daughter  Elizabeth  shall 
yearly  receive,  and  be  paid,  until  suchjime  as  she_shall  marry,  the  sum 
of  twelve  poun'HsT  free  and  clear  of  all  taxes  and  impositions  whatso- 
ever."    And  "willed,  that  his   leasehold   estate   called  ,   should 

stand  charged  with  the  payment  of  the  said  £12  per  annum,  and  like- 
wise with  the  payment  of  the  £200  when  the  same  should  become  due, 
and  devised  the  said  leasehold  premises,  and  his  whole  personal  estate, 
to  his  two  sons,  and  made  them  his  executors. 

Elizabeth  died  after  21,  but  without  being  married;  and  the  present 
plaintiff,  as  her  administrator,  brought  a  bill  against  the  executors  of 
Hiccocks  for  the  £200. 

The  general  question,  \\'hether  the  legacy  vested  in  Elizabeth,  and 
whether  it  so  vested  as  to  be  transmissible  to  her  administrator? 

Lord  Chancellor  [Hardwicke].  I  am  of  opinion  this  was  not  a 
vested  legacy ;  in  the  common  cases  of  legacies  to  be  paid  at  the  age  of 
2l7there  is  a  certain  time  fixed,  not  to  the  thing  itself,  but  to  the  exe- 
cution of  it,  and  the  time  being  so  fixed,  must  necessarily  come :  but 
when  the  time  annexed  to  the  payment  is  merely  eventual,  and  may  or 
may  not  come,  and  the  person  dies  before  the  contingency  happens,  I 
can  find  no  instance  in  this  court,  w'here  it  has  been  held  that  the  legacy 
at  all  events  should  be  paid.  The  rule  as  to  the  vesting  is  founded  upon 
another  rtile,  certum  est  quod  certum  reddi  potest,  and  it  is  plain  that 
the  testator  did  not  regard  the  point  of  time,  but  the  fact  that  was  to 
happen,  the  marriage,  which  makes  it  a  legacy  on  a  condition,  and 
cannot  be  demanded  till  the  condition  be  satisfied. 

It  has  been  argued  by  ]\Ir.  Attorney-General,  that  this  bequest  dif- 
fers not  from  a  legacy  given  to  be  paid  at  21,  which  vests  immediate- 
ly, and  the  time  of  payment  only  is  postponed. 

But  it  has  been  always  held,  with  regard  to  such  a  limitation  of 
payment  at  21,  that  it  is  debitum  in  prgesenti,  solvendum  in  futuro, 
and  the  payment  postponed  merely  on  account  of  the  legatee's  legal 

sistent  with  equity  hy  the  rules  of  the  common  law.  In  the  case  of  personal 
estate,  the  rule  is  the  same  here  as  in  the  civil  law,  that  there  may  be  an 
uniformity  of  judgments  in  the  different  courts ;  but  in  the  case  of  lauds,  the 
rule  of  the  common  law  has  always  been  adhered  to:  as  suppose  a  person 
should  covenant  to  pay  money  to  another  at  a  future  day,  if  the  covenantee 
dies  before  the  day  of  payment,  the  money  is  not  due  to  his  representative. 
The  same  rule  holds  in  the  case  of  a  promise  to  pay  money."  Per  Lord  Hard- 
wicke, C,  in  Prow.se  v.  Abingdon,  1  Atk.  4S2,  486  (1738).  See,  accord  Pearce 
V.  Loman,  3  Ves.  135  (179G). 


208  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

incapacity  of  managing  his  own  afifairs  till  that  age ;  and  this  has  been 
the  established  rule  of  this  court  ever  since  Clobberie's  Case,  2  Ventris 
342. 

In  the  Digest,  lib.  35,  tit.  1,  lex  75,  de  Conditionibus,  &c.,  it  is 
held  that  dies  incertus  conditionem  in  testamento  facit,  and  these  are 
the  Avords  of  the  text,  and  not  of  the  commentator ;  so  that  a  time 
absolutely  uncertain  is  put  on  the  same  footing  as  a  condition ;  but  as 
the  civil  law  is  no  further  of  authority  than  as  it  has  been  received  in 
England,  let  us  see  what  our  own  authors  say.  Swinbourn,  part  4, 
sec.  17,  page  267,  old  edition,  makes  a  difference  between  a  certain 
and  an  uncertain  time,  and  lays  it  down,  that  if  a  legacy  is  given  to  be 
paid  at  the  day  of  marriage,  and  the  legatee  die  before,  the  legacy  is 
lost.    God.  Orp.  Leg.  452,  is  to  the  same  eft'ect. 

It  has  been  insisted,  that  the  testator's  giving  £12  per  annum  to  Eliz- 
abeth till  the  contingency  of  her  marriage,  is  in  the  nature  of  interest 
for  the  i200  and  that  from  thence  it  appears  to  be  his  intention,  that 
the  legacy  should  vest  in  the  meantime ;  but  whenever  this  doctrine  has 
been  allowed,  the  payment  of  the  principal  hath  been  certain,  and 
so  not  similar  to  the  present  case,  because  here  this  is  not  meant  as 
interest,  for  it  is  an  annuity  of  £12  per  annum  charged  upon,  and  is-"" 
suing  out  of  an  estate.'^ 

'The^asc  in-t  Salk,  1/0,  Thomas  v.  Howell,  was  plainly  a  condition 
subsequent,  and  being  made  impossible  by  the  act  of  God,  it  was  ad- 
judged that  the  condition  was  not  broken,  and  consequently  should  not 
devest  the  estate  out  of  the  devisee. 

The  second  point  is  very  strong  against  the  transmissibleness,  which 
is  her  marrying  with  the  consent  of  her  two  brothers^  and  shows  plainly 
the  testator  intended  a  condition  precedent,  that  if  she  married  she  was 
to  have  £200  for  her  portion ;  but  it  she  died  before,  there  was  no 
occasion  to  have  it  raised  for  the  benefit  of  a  stranger. 

It  is  true  indeed,  as  there  is  no  devise  over,  the  clause  of  consent 
might  be  only  in  terrorem,  but  in  all  cases,  where  the  condition  of' 
marrying  is  annexed,  it  is  necessary  that  the  condition,  as  to  the  mar- ' 
r>TTrg'^  least,  should  be  performed,  though  she  is  not  obliged  to  marry 
with  consent.  ~~~       ~  " 


am  the  more  satisfied,  because  it  appears  to  be  the  intention  of  the 
testator,  tliat  this  £200  should  be  in  the  nature  of  a  marriage  portion, 
for  he  has  taken  it  out  of  a  leasehold  estate ;  and  if  she  did  not  marry, 
it  was  manifestly  his  design  that  it  should  sink  in  that  estate  for  the 
benefit  of  his  sons :  therefore  I  think  this  bequest  is  to  be  considered 
as  a  condition  precedent,  which  not  being  performed,  the  legacy  did 
never  vest,  and  consequently  the  administrator  can  make  no  title  to  it. 
The  bill  dismissed.^ 

7  See  Watson  v.  Hayes.  5  Myl.  &  Cr.  125  (1839). 

8  Accord:  Morgan  v.  Morgan,  4  De  G.  &  S.  164;  In  re  Cantinon's  IVIinors, 
16  Ir.  Cli.  301 ;  Corr  v.  Corr,  I.  Ri  7  Eq.  397 ;  Taylor  v.  Lambert,  2  Cli.  D. 
177. 


Ch.  4)  VESTING  OF   LEGACIES  209 

BOOTH  V.  BOOTH. 
(Court  of  Chancery,  1799.    4  Ves.  Jr.  399.) 

Robert  Bragge  by  his  will,  dated  the  21st  of  January,  1777,  devis- 
ed his  real  estate  to  his  great-nephew  Robert  Booth  and  his  issue  in 
strict  settlement,  with  remainder  to  his  brother  Richard  Booth  and  his 
issue  in  strict  settlement;  with  similar  remainders  to  their  sisters 
Phoebe  Booth  and  Ann  Booth,  and  their  issue  respectively. 

The  testator  also  gave  a  legacy  of  £600  to  his  great-nephew  Robert 
Booth,  and  ilOO  to  Robert  Lathropp,  whom  he  appointed  sole  execu- 
tor; and,  after  giving  some  other  pecuniary  legacies,  he  gave  all  the 
residue  of  his  estate  and  effects,  which  should  remain  after  paying 
Ris"  delits,  funeral  expenses,  charges  of  proving  his  will,  and  the  lega- 
cies, to  Sir  John  Chapman  and  Robert  Lathropp,  their  executors,  ad- 
ministrators, and  assigns,  upon  trust  as  soon  after  his  decease  as  con- 
veniently might  be  to  collect  and  get  in  same,  and  invest  same  from 
time  to  time  in  some  of  the  public  funds  or  upon  government  or  real  se- 
curity in  their  joint  names  or  in  the  name  of  the  survivor  with  pow- 
er to  change  such  funds ;  and  upon  trust  to  pay  the  dividends  and 
produce  thereof,  as  the  same  should  from  time  to  time  become  due, 
equally  between  his  great-nieces  Phoebe  Booth  and  Ann  Booth  until 
their  respective  marriages,  and  trom  and  mtmediately  after  their  re- 
spective  marriages  to  assign  and  transfer  their  respective  moieties  or 
shares  thereof  unto  them  respectiveTy^    ~ 

The  testator  died  soon  afterwards,  Richard  Booth  took  a  consider- 
able reaT estate  upon  the  death  of  his  father. 

At  the  date  of  the  will  Phoebe  Booth  and  Ann  Booth  wpre  both  of 
age;  and  they  filed  the  bill  to  have  their  interests  in  the  residue  de- 
clared :  but  the  Master  of  thd  Rolls  thought  that,  as  the  plaintiffs 
might  marry,  the  question  was  not  ripe  for  decision. 

By  the  decree  made  in  that  cause  on  tlie  l^tlTof  June,  1793^  the 
fund  was  ordered  to  be  transferred  to  the  Accountant-General ;  and 
an  inquiry  was  directed  for  the  purpose  of  ascertaining  who  were  the 
testator's  next  of  kin  at  the  time  of  his  death. 

The  report  stated  that  the  plaintiffs  and  their  two  brothers  Robert 
and  Richard  Booth  were  the  testator's  next  of  kin  at  the  time  of  his 
death ;  and  that  the  plaintiff  Phoebe  Booth  died  in  June,  1797,  without 
having  been  ever  married.  By~her  will,  made  shortly  before  her  death, 
she  appointed  her  brother,  the  defendant  Richard  Booth,  and  the 
plaintiff  Ann  Booth,  her  executors ;  and  having  disposed  of  certain 
real  estates,  and  given  a  legacy  of  .£100  to  her  brother  Richard  Booth 
for  his  trouble  as  one  of  her  executors,  she  gave  the  residue  of  her 
personal  estate  to  the  plaintiff  Ann  Booth,  but  with  such  request  an- 
nexed,  as  therein  mentioned. 
4  Kales  Pbop. — 14 


210  CONSTRUCTION   OF  LIMITATIONS  (Part  2 

The  cause  coming  on  for  farther  directions,  the  question  was,  wheth- 
er the  shnre  of  Phnehe  Bootli  in  the  residue  of  the  personal  estate  of 
Robert  Bragge  under  his  will  was  an  absolute  vested  interest  in  her, 
to  be  transferred  to  her  executors,  or  whether  in  the  event  of  her 
having  died  unmarried  it  belonged  to  the  next  of  kin  of  Robert  Bragge 
as  undisposed  of. 

Master  of  the  Rolls  [Sir  Richard  Pepper  Arden].  This  case 
deserved  very  great  consideration,  lest  it  should  be  supposed,  that  the 
court  had  by  deciding  it  transgressed  the  rule  laid  down  as  to  legacies 
given  payable  at  an  uncertain  time.  When  it  was  argued,  I  was  im- 
pressed with  an  idea,  that  it  was  distinguishable  from  all  the  cases  in 
respect  of  its_being  not  the  case  of  a  legacy,  but  a  residue ;  and  allthe 
cases,  in  which  that  rule  prevailed,  were  cases  of  mere  legacies,  to  be 
paid  out  of  the  personal  estate  by  the  executor ;  the  residuary  legatee, 
or  the  executor,  if  he  was  to  have  the  residue,  having  only  to  pay  at 
the  time  the  legacy  became  due,  and  taking  the  residue.  But  this  is 
not  that  case,  but  the  case  of  a  residue. 

I  do  not  see,  that  any  of  the  pecuniary  legacies  are  given  to  Phoebe 
and  Ann  Booth;  though  I  do  not  think,  that  would  make  much  differ- 
ence :  they  are  both  comprehended  in  the  limitations  of  the  real  estate. 
It  is  to  be  observed,  that  Robert  Lathropp  only  is  executor :  Sir  John 
Chapman  is  a  trustee,  but  not  executor.  Therefore  it  is  not  a  gift  of 
the  residue  to  tlie  executor,  but  to  him  and  another  person  upon  these 
trusts.  Both  these  residuary  legatees  were  adults  at  the  time  the 
residue  was,  given  to  them :  if  it  had  been  otherwise,  it  might  have 
made  some  ingredient  in  the  argument.  The  event  that  has  happen- 
ed, is  that  one  of  them  has  died  without  having  ever  been  married ; 
and  the  bill  ^  is  filed  by  her  sister  claiming  under  her  will,  and  insisting, 
that  she  was  entitled,  though  she  never  married;  that  marriage  was 
not'~a" condition  precedent,  upon  which  the  residue  was  to  vest;  but 
mei'elvdenoted  "IHe  tiiTie^_ax  which  the  residuary  legatees  were  to  be 
put  in  full  possession  of  the  property. 

THe^  argument  upon  the  part  of  the  plaintiff  turned  upon  a  ground, 
that  is  frequently  taken  upon  legacies  payable  at  a  future  day,  which 
on  account  of  the  death  of  the  legatee  never  arrives ;  that  the  time 
being  mentioned  merely  as  the  time  of  payment  on  account  of  the 
situation  and  circumstances  of  the  party  is  never  held  to  defeat  tlie 
legacy.  The  cases  were  commented  upon  on  both  sides.  Atkinson 
V.  Paice  [1  B.  C.  C.  91],  was  mentioned;  which  I  lay  out  of  the  case. 
It  does  not  prove  much.  Of  the  other  cases,  Boraston's  Case  [3  Co. 
19a],  Doe  v.  Lea  [3  T.  R.  41,],  Goodtitle  v.  Whitby  [1  Burr.  228], 
and  Mansfield  v.  Dugard,  1  Eq.  Ca.  Ab.  195,  are  in  favor  of  the  plain- 
tiff: but  it  was  properly  observed,  they  were  all  cases  of  an  abso- 
lute interest;  the  possession  of  which  was  to  be  given  at  a  certain 
time.     The  reasoning  upon  them  would  be  sufficient  for  the  plaintiff, 

9  A  supplemental  bill  was  filed  after  the  report  in  the  original  cause. 


Ch.  4)  VESTING  OF   LEGACIES  211 

if  applied  to  this  case;  for  the  reasoning  is,  that  though  the  testator 
has  given  a  partial  interest  till  that  time,  those  words  of  reference  as 
to  the  time  are  not  to  be  considered  as  referring  to  the  time,  upon 
which  only  the  devise  is  to  take  place,  but  the  time,  at  which  the  devisee 
or  legatee  is  to  be  entitled  to  the  full  and  absolute  benefit  of  the  be- 
quest ;  and  a  reason  is  given,  which  does  not  apply  to  this  case,  that 
it  cannot  be  supposed,  that,  if  the  devisee  or  legatee  should  die  before 
that  time,  leaving  children,  the  intention  was,  that  children  should  not 
take.  I  shall  not  comment  upon  the  cases.  The  arguments  of  the 
judges,  who  decided  them,  are  very  full  to  show,  that  such  words  do 
not  make  a  condition  precedent,  but  merely  denote  the  time  of  absolute 
possession. 

It  is  very  true,  the  cases  relied  on  by  the  defendant,  Garbut  v. 
Hilton  [1  Atk.  381],  Atkins  v.  Hiccocks  [lb.  500],  and  Elton  v.  Elton 
[3  Atk.  504],  are  very  distinguishable  from  this.  First,  they  are  all 
cases  of  mere  legacy,  not  of  a  residue :  secondly,  in  the  very  gift  of  the 
legacy  it  is  perfectly  clear,  as  Lord  Hardwicke  observes  in  Etton  v. 
Elton,  that  they  are  all  cases  of  a  condition  absolutely  precedent.  It 
is  impossible  not  to  see,  that~^tlie  testator  meant  the  legatee  to  bring 
himself  into  the  circumstances  specified.  In  all  those  cases  the  legacy 
was  given  upon  a  marriage  with  a  given  consent,  it  is  impossible  ni 
that  sort  ot  case  to  say,  the  legatee  could  be  entitled  without  that.  It 
would  be  to  put  a  violation  upon  the  very  words  of  the  bequest.  There- 
fore the  plaintifif's  counsel  are  fully  justified  in  saying,  those  cases 
cannot  be  brought  to  bear  upon  this  question.  They  are  cases  of 
legacies,  and  conditions  precedent.  They  were  considered  and  deter- 
mined as  such. 

For  the  defendant,  besides  the  cases,  I  have  mentioned,  the  late  case 
of  T|^^,f^fri'"'^  ^'  ^^'^bbf^^  [3  Ves.  Jr.  363],  was  relied  on;  in  which  the 
Eord  Chancellor  took  a  great  distinction  between  a  bequest  of  a  sum  of 
money  payable  at  a  future  time  and  a  gift  of  the  interest  until  a  certain 
time  and  then  a  gift  of  the  principal.  His  Lordship  gives  a  short 
judgment;  but  upon  consideration  of  all  the  cases  he  laid  it  down,  that 
it  is  necessary  to  show,  the  principal  was  intended  to  be  given,  before 
the  time  arrived ;  and  in  that  case  he  for  that  reason  held,  the  legacy 
(for  that  was  the  case  of  a  legacy)  never  attached. 

It  is  to  be  considered,  whether  this  case  is  in  its  circumstances 
distinguishable  from  all  these  cases ;  and  I  am  of  opinion,  it  is.  It 
is  distinguished  from  Batsford  v,  Kebbell  in  this  respect:  that  this_ 
is  m~fact  an  aTDSolTTtCgift  of  the  residue  to"  trustees.  It  may  be  said, 
so  much  ot  the  trust  as  is  not  sutticiently  declared  must  go  to  the  person, 
who  would  be  entitled,  in  case  there  was  no  disposition :  but  I  think, 
it  is  equivalent  to  saying,  in  trust  for  them,  to  pay  and  dispose  of  the 
dividends  and  interest  to  them  till  their  respective  marriages,  and 
then  to  assign  and  transfer  the  principal :  for  it  is  not  merely  a  gift 
of  the  interest  until  marriage,_stopping  ther£,  and  after  -tlie„iiian:i age 
a  gitt  ot  the  principal  rbut  it  is  impossible  not  t^  '^("p,  <^hni-  thp^p  vv-nrH'^ 


212  CONSTRUCTION   OF  LIMITATIONS  (Part  2 

are  equivalent  to  a  gift  of  Jhe  principal.  The  testator  considers  it  as 
given.  He  speaks  of  it  as  their  shares  o'f  the  residue!  'ihe  day  of 
their  marriage  is  the  time,  at  which  they  are  to  be  put  into  actual 
possession  of  their  shares.  I  cannot  construe  this  otherwise  than  an 
absolute  gift  of  the  residue,  qualified  only  thus,  that  until  their  mar- 
riages, until  when,  I  suppose,  he  thought  they  would  not  want  it,  they 
were  not  to  have  the  actual  possession. 

That  there  is  a  difference  between  a  bequest  of  a  legacy  and  a  residue 
with  reference  to  this  point  cannot  be  denied  either  upon  principle  or 
precedent.  ^Every  intendment  is  to  be  made  against  holding  a  man 
to  cTTe  intestate,  who  sits  down  to  dispose  of  the  residue  of  his  prop- 
erty!!  How  did  this  testator  dispose  of  it?  It  might  be  supposed  nat- 
ural,  that  they  would  marry.  It  might  be  in  his  idea,  that  there  might 
be  a  possibility,  that  they  might  not  marry.  If  he  did  not  mean  by 
the  residuary  bequest  to  dispose  of  the  absolute  interest,  it  was  nat- 
ural, that  he  should  declare,  what  should  be  the  case,  if  they  should 
not  mtirry.    He  has  done  that.    So  much  as  to  the  principle. 

Next,  how  far  in  point  of  precedent  has  a  gift  of  the  residue  been 
held  distinguished  from  a  mere  legacy?  In  Monkhouse  v.  Holme,  1 
Bro.  C.  C.  298,  Lord  Loughborough  comments  upon  all  the  cases;  and 
among  others  mentions  Love  v.  L'Estrange  [3  P.  C.  C.  (Toml.  Ed.) 
59]  ;  upon  which  I  mainly  rely  in  this  case.  His  Lordship  says,  that 
case  was  determined  upon  the  ground  of  its  being  a  residue;  and, 
if  the  report  is  correct,  he  gives  a  decided  opinion,  that  Love  v. 
L'Estrange,  if  it  had  not  been  the  case  of  a  residue,  would  not  have 
been  decided  as  it  was;  being  of  opinion,  that,  if  it  had  not  been  the 
case  of  a  residue,  but  a  legacy,  it  would  not  have  been  a  vested  inter- 
est. I  am  not  now  coinmenting  upon  the  point,  whether  that  argu- 
ment strictly  applies  to  Love  v.  L'Estrange.  It  is  enough  for  me  to 
avail  myself  of  Lord  Loughborough's  comment  upon  it ;  who  was  evi- 
dently of  that  opinion  upon  the  ground,  upon  which  Batsford  v.  Keb- 
bell  was  decided.  In  ]\Ionkhouse  v.  Holme  Lord  Loughborough  seems 
to  be  of  opinion,  as  he  was  in  Batsford  v.  Kebbell,  that  in  Love  v. 
L'Estrange,  there  being  no  gift  of  the  principal  until  the  age  of  twenty- 
four,  and  only  a  partial  gift  in  the  meantime,  from  the  age  of  twenty- 
one,  not  so  much  as  the  interest,  the  principal  could  not  attach  until 
that  time,  unless  upon  its  being  the  case  of  a  residue ;  which  distin- 
guished it  from  Batsford  v.  Kebbell,  a  case  in  other  respects  very 
like  it.  I  do  not  find,  that  is  mainly  insisted  on  in  the  printed  case  of 
Love  V.  L'Estrange;  and  I  see,  in  May  v.  Wood  [3  B.  C.  C.  471],  I 
stated  that  fact,  that  it  was  not  insisted  on;  and  that  I  did  not  see 
any  difference  between  the  cases  of  a  legacy  and  a  residue.  If  I  did 
say  so,  I  spoke  with  too  much  latitude ;  for  I  then  thought,  and  I  now 
think,  there  is  a  distinction ;  though  in  that  case  it  made  no  dift'erence ; 
the  words  being  so  like  those  in  Doe  v.  Lea,  and  Goodtitle  v.  Whitby ; 
in  the  latter  of  which  some  principles  are  laid  down  by  Lord  Mansfield, 
with  regard  to  all  words,  that  may  be  construed  words  of  reference  to 


Ch.  4)  VESTING  OF   LEGACIES  213 

the  time,  at  which  possession  is  to  be  given,  and  not  words  of  condi- 
tion, that  seem  to  me  to  govern  the  decision  of  this  case.  The  first 
principle  laid  down  by  Lord  Mansfield  is,  that  wherever  the  whole 
property  is  devised,  with  a  particular  interest  given  out  of  it,  it  oper- 
ates by  way  of  exception  out  of  the  absolute  property. 

In  that  case  the  estates  were  given  to  trustees  and  their  heirs,  upon 
trust  to  apply  the  rents  and  profits  for  the  maintenance  and  education 
of  the  nephews  of  the  devisor  during  their  minorities ;  and  when  and 
as  they  should  respectively  attain  the  age  of  twenty-one  then  to  the 
use  of  his  said  nephews. 

Another  principle  laid  down  by  Lord  Mansfield  is,  that,  where  an 
absolute  property  is  given,  and  a  particular  interest  given  in  the  mean 
time,  as  until  the  devisee  shall  come  of  age,  &c.,  and  when  he  shall 
come  of  age,  &c.,  then  to  him,  &c.,  the  rule  is,  that  shall  not  operate 
as  a  condition  precedent,  but  as  a  description  of  the  time,  when  the 
remainder-man  is  to  take  in  possession. 

If  this  will  had  mentioned  a  particular  age  instead  of  marriage,  there 
could  be  no  doubt,  that  these  cases  would  have  absolutely  governed  it; 
for  though  I  do  not  deny,  that  dies  incertus  in  testamento  conditionem 
facit,  I  say,  admitting  that  principle  that  marriage  is  the  time,  at  which 
they  were  to  be  put  in  possession.  It  is  true,  the  testator  fixes  the  mar- 
riage to  the  time  at  which  they  were  to  be  put  in  possession.  It  is  not 
a  marriage  under  any  qualification,  but  whenever  they  should  marry. 
W^iere  is  the  absurdity,  that  that  tmie  should  be  hxed,  as  the  time  for 
their  being  put  into  possession  ?  The  testator  thought  that  the  time  at 
which  they  might  want  it,  and  until  which  it  would  be  better  applied 
upon  that  trust  for  their  benefit. 

Therefore,  without  breaking  in  upon  that  rule  of  the  civil  law,  or 
the  cases  before  Lord  Hardwicke,  to  whose  doctrine  I  wish  to  refer, 
that,  it  is  impossible  not  to  see,  that  the  testator  in  those  cases  did 
mean  those  circumstances  to  be  conditional,  I  am  of  opinion,  tliere  is 
nothing  in  this  will  to  show  a  condition  precedent  to  the  vesting  of 
this 'interest.  Another  reason  may  be  given.  Suppose,  one  of  these 
sisliefs  had  married,  and  had  children:  this  interpretation  puts  it  in 
the  power  of  the  other  to  provide  for  those  children.  It  has  been  de- 
termined, that  where  a  legacy  is  given,  payable  at  the  "age  oi'  LrreiiLy"  ^ 
fouT^  the  legatee  at  ihe  age  of  twenty-one  may  dispose  of  it  by  will. 
The  saint  I'easuii  applies  lo  tnis  case. 

Upon  these  circumstances,  and  the  ground,  that  tliis  is  a  residue,  and 
upon  the  words  of  the  bequest  in  this  case,  I  am  of  opinion  that  the 
plaintiff^  is  vyell  entitled  under  the  Avill  of  her  sister  to  her  share  of  the 
residue. 

The  counsel  for  the  plaintiff  applied  for  a  direction  for  payment  of 
her  moietA  "^ 


TIaster  o?  the  Rolls.    I  doubt  as  to  giving  that  direction.    In  alj^ 
these  cases  the  court  has  never  yet  accelerated  the  payment.     It  ma> 
be  a  vested  mterest,  and  disposable,  but  not  tangible  in  the  rr\e^r,~}:mF^ 


214  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

It  is  worth  consideration  upon  the  question,  whether  the  survivor  has 
any  right  to  denlflnd  p;iyffleill  Uiid  tu  be  puL  in  pusb.essiOn  of  this  vested 
interest  until  the  day  of  her  marriage.  Suppose,  in  Love  v.  L'Estrange, 
where  the  testator  had  anxiously  given  only  £10  a  year  till  Walter 
Nash  should  attain  the  age  of  twenty-four,  having  attained  the  age 
of  twenty-one  he  had  brought  his  bill :  does  it  follow,  that  he  would 
have  been  put  in  possession?  No  other  person  could  have  had  any 
advantage  from  it  in  that  case.  It  is  like  the  case  of  an  infant,  who 
may  dispose  of  property,  though  he  caniiot  have  possession  of  it,_until 
hejs^qf  age]  I  will  consider  of  this  point.  I  am  not  sure,  it  may  not 
be  a  wise  provision,  intended  for  the  benefit  of  the  legatee. 

By  the  decree  it  was  declared,  that  the  plaintiff  Ann  Booth  and  the 
defendant  Richard  Booth  as  executor  and  executrix  of  the  testatrix 
Phoebe  Booth  are  entitled  to  one  moiety  of  the  Bank  Annuities  and 
Bank  Stock,  constituting  the  clear  residue  ot  the  personal  estate  of  the 
testator  Robert  Bragge,  and  it  was  ordered,  that  one  moiety  of  the  said 
Bank  Annuities  and  Bank  Stock  be  transferred  accordingly,  to  be  ap- 
plied  by  them  to  the  purposes  m  tlie  said  testatrix's  will  mentioned ; 
and  that  the  interest  and  dividends  to  accrue  due  on  the  other  moiety 
of  the  said  Bank  Annuities  and  Bank  btock  be  trom  time  to  time  paid 
to  the  said  Ann  Booth  dufing~her  lifej_f\nd  in  case  of  her  marriage 
th e  said  Ann  Booth,  or  in  case  of  her  death  before  marriage  any  othe r 
person  interested  in  the  said  Bank  Annuities  and  Bank  Stock,  are  to 
be  at  liberty  to  apply  to  the  court,  as  there  shall  be  occasion. 


SAUNDERS  v.  VAUTIER. 

(High  Court  of  Chancery,  1S41.     1  Craig  &  P.  240.) 

Richard  Wright,  by  his  will,  gave  and  bequeathed  to  his  executors 
and  trustees  thereinafter  named,  all  the  East  India  stock  which  should 
be^sFanding  in  his  name  at  the  time  of  his  death,  upon  trust  to  ac- 
cumulate the  interest  and  clividencls  which  shoufd  "accrue  due  thereon 
until  Daniel  Wright  Vautier,  the  eldest  son  of  his  (the  testator's)  neph- 
ew, Daniel  Vautier,  should,  attain  his  age  of  twenty-five  years,  and 
th eii  to  pay  or  transfer  the  principal  of  such  East  India  stock,  togetlier 
w i th  such  accumulated  interest  and  dividends,  unto  the  said  Daniel 
WViglTt  Vautier,  his  executors,  administrators,  or  assigns  absolutely; 
and  the  testator  gave,  devised,  and  bequeathed  all  his  real  estates,  and 
all  the  residue  of  his  personal  estate  whatsoever  and  wheresoever,  to 
his  executors  and  trustees  thereinafter  named,  their  heirs,  executors, 
administrators,  and  assigns,  upon  trust  tosell  and  convert  into  money 
all  his  said  real  and  personal  estates  immeoiately  after  his  decease,  and 
to  invest  the  produce  arising  therefrom  in  their  names  in  the  £3.  per 
cent  consolidated  bank  annuities,  and  to  stand  possessed  thereof  upon 


Ch.  4)  VESTING  OF  LEGACIES  215 

trust  for  the  said  Daniel  Vautier  and  Susannah  his  wife,  and  the  sur- 
vivQC  ot  them,  durmg  their  respective  lives,  and  from  and  afltif  Lire 
decease  of  the  survivor  of  them,  upon  trust  for  their  children,  equally, 
when  and  as  they  should,  severally,  being  sons,  attain  the  age  of  twenty- 
one  years,  or  being  daughters,  attain  that  age  or  be  married,  with  the 
consent  of  their  trustees  and  guardians,  and  in  the  meantime  to  apply 
the  interest  and  dividends,  of  the  respective  shares  of  such  children 
for  their  benefit,  education,  or  maintenance ;  and  in  case  any  child 
should  die  before  attaining  a  vested  interest  in  the  fund,  then  the  tes- 
tator directed  that  the  share  of  the  child  so  dying  should  go  and  sur- 
vive to  the  others :  and  the  testator  nominated  and  appointed  his  friends 
John  Saunders  and  Thomas  Saunders  his  executors  and  trustees. 

The  testator  died  on  the  21st  of  March,  1832,  at  which  time  a  sum 
of  £2000.  East  India  stock  was  standing  in  his  name.  The  executors, 
having  proved  the  will,  left  that  sum  standmg  m  the  testator's  name, 
but  invested  the  dividends  on  it,  as  they  accrued,  in  the  purchase  of 
like  stock  in  their. own  names. 

Shortly  after  the  testator's  death,  this  suit  was  instituted  by  the  ex- 
ecutors against  Susannah  Vautier  and  her  children  (Daniel  Vautier 
having  died  in  the  testator's  lifetime,)  for  the  purpose  of  havTng'flie 
trusts  "of  the  will  carried  into  execution  under  the  direction  of  the 
court;  and  a  decree  was  accordingly  made,  directing  the  usual  ac- 
counts. A  petition  was  afterwards  presented  on  behalf  of  Daniel 
Wright  Vautier,  who  was  then  a  minor,  praymg  the  appointment  ot 
a  '"gual'di^lh,  and  an  allowance  tor  his  past  and  future  maintenance : 
and,  the  usual  reference  having  been  directed,  the  master,  by  his  re-" 
port,  found,  amongst  other  things,  that  the  petitioner's  fortune  con- 
sisted of  the  sum  of  £2277 .  6s.  7d.  East  India  stock,  being  the  amount 
of  the  above-mentioned  sum  of  £2000.,  with  the  accumulations  thereon 
since  the  testator's  death,  and  of  one-seventh  shai-e  of  the  testator's 
residuary  estate,  which  would  be  divisible  on  the  death  of  the  peti- 
tioner's mother.  He  also  found  that  the  petitioner  had  been  educated 
and  maintained,  since  the  death  of  the  testator,  by  his  mother,  and  that 
she  had  properly  expended  in  such  maintenance  the  sum  of  £338.  2s., 
which  he  found  ought  to  be  paid  to  her  by  sale  of  a  sufficient  part 
of  the  £2277.  6s.  7d.  East  India  stock;  and  he  found  that  the  sum 
of  £100.  per  annum  would  be  a  proper  sum  to  be  allowed  for  the  main- 
tenance and  education  of  the  petitioner  for  the  time  to  come  during 
his  minority,  and  that  it  should  be  paid  out  of  the  dividends  of  the 
East  India  stock. 

By  an  order  of  the  Master  of  the  Rolls,  (Sir  C.  C.  Pepys,)  dated 
the  25th  of  July,  1835,  that  report  was  confiniied  and  carried  into  ef- 
fect, and,  in  pursuance  of  that  order,  the  trustees  continued,  during 
the  minority  of  Daniel  Wright  Vautier,  to  pay  the  sum  of  £100.,  out 
of  ttgrtTiviclcnds  of  Jhe  stock,  for  his  maintenance. 

0aniel  Wi^ight  Vautier  attained  twenty-one  in  the  month  of  March, 
1 84 1,"  and  being  then  about  to  be  married,  he  presented  a  petition  to 


216  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

the  Master  of  the  Rolls, ^'^  praying  that  the  trustees  might  be  ordered 
tcf  tianyit'i  lu  him  the  East  India  stock,  or  that  it  might  be  reterred 
to'  the  master  to  inquire  whether  it  would  be  fit  and  proper  that  any 
and  what  part  of  the  stock  should  be  sold,  and  the  produce  thereof 
paid  to  the  petitioner,  regard  being  had  to  his  intended  marriage,  and 
for  the  purpose  of  establishing  him  in  business. 

Upon  that  petition  coming  on  to  be  heard  before  the  Master  of  the 
Rolls,  his  lordship's  attention  was  called  to  the  order  of  the  25th  of 
July,  1835,  whereupon  he  declined  to  deal  with  the  question  raised 
upon  the  petition,  so  long  as  that  order  remained ;  and  it  was,  in  con- 
sequence, arranged  that  the  petition  should  stand  over,  for  the  purpose 
of  enabling  the  other  residuary  legatees  to  present  an  appeal  petition 
from  that  order  to  the  Lord  Chancellor. 

An  appeal  petition  was  accordingly  presented,  praying,  simply,  that 
the  order  of  the  25th  of  July,  1835,  might  be  discharged  or  varied; 
and  that  petition  now  came  on  to  be  heard. 

The  Lord  Chance;llor  [Lord  Cottenham].  I  cannot  recognize 
the  principle  that  the  existence  of  an  erroneous  order  as  to  maintenance 
prevents  the  court  from  making  an  order  inconsistent  with  it,  as  to  the 
principal  fund.  There  was  nothing  to  prevent  the  Master  of  the  Rolls 
from  disposing  of  the  petition  which  was  brought  before  him,  notwith- 
standing that  order.  But,  with  respect  to  this  petition,  I  do  not  see 
to  what  purpose  I  can  deal  with  it.  If  the  party  were  still  a  minor, 
and  the  payment  of  the  maintenance  under  the  order  were  going  on, 
there  might  be  a  reason  for  applying  to  stop  it  for  the  future ;  but  by 
discharging  that  order,  I  should  be  making  the  trustees  liable  for  the 
payments  they  have  made  for  maintenance.  The  petition  presented 
to  the  Master  of  the  Rolls  is  not  now  before  me,  or,  wnth  the  con- 
sent of  the  parties,  I  would  dispose  of  it. 

The;  Lord  Chancellor.  I  should  not  have  thought  this  a  case  of 
any  difficulty;  but  the  form  in  which  it  came  before  me,  namely,  a 
rehearing  of  an  order  made  by  me  at  the  Rolls,  though  not,  as  I  at 
first  understood,  at  the  suggestion  of  the  Master  of  the  Rolls,  has 
called  upon  me  to  give  it  my  most  careful  attention.  I  have  no  recol- 
lection of  the  case,  and  have  no  means  of  knowing  how  far  my  judg- 
ment was  exercised  upon  the  construction  of  the  will.  I  cannot,  how- 
ever, assume  that  the  order  was  made  without  my  having  considered 
the  state  of  the  property  as  stated  in  the  master's  report;  as  that  would 
have  been  contrary  to  the  course  which  I  have  always  thought  it  my 
duty  to  adopt  in  such  cases. 

It  is  argued  that  the  testator's  great  nephew,  Daniel  Wright  Vautier, 
does  not  take  a  vested  interest  in  the  East  India  stock  before  his  age 
of  twenty-five,  because  there  is  no  gift  but  m  the  direction  tcT transfer 
the  stock  to  him  at  that  age,    but  is  that  sor    There  is  Jin  inTmediate 

10  Lord  Langdale,  the  successor  of  Sir  C.  C.  Pepjs,  who  became  chancellor 
with  the  title  of  Lord  Cotteuhaiu.  The  case  before  Lord  Langdale,  Master  of 
the  Rolls,  is  reported  4  Hfetiv.  115. 


Ch.  4)  VESTING  OF  LEGACIES  217 

gift  of  the  East  India  stock;  it  is  to  be  separated  from  the  estate  and 
vested  in  trustees;  and  the  question  is  whether  the  great  nephew  is 
not  the  cestui  que  trust  of  that  stock.  It  is  immaterial  that  these  trus- 
tees are  also  executors;  they  hold  the  East  India  stock  as  trustees, 
and  that  trust  is,  to  accumulate  the  income  till  the  great  nephew  at- 
tains twenty-five,  and  then  to  transfer  and  pay  the  stock  and  accumu- 
lated interest  to  hirn,  his  executors,  administrators,  or  assigns.  The^e 
is  no  gift  over;  and  the  East  Indi^  stock  eitlier_belon^ to  the  j^reat 
nepncw,  or  will  fall  intoThe  residue  m  the  event  of  his  dying  under 
twenty-rive.  I  am  clearly  of  opinion  that  he  is  entitled  to  it.  If  the 
gift  were  within  the  rule,  there  would  be  circumstances  to  take  it  out 
of  its  operation.  There  is  not  only  the  gift  of  the  intermediate  inter- 
^st,  indicative,  as  Sir  J.  Leach  observes  in  Vawdry  v.  Geddes,  1  Russ. 
&  Mylne,  203  (see  p.  208),  of  an  intention  to  make  an  immediate  gift, 
because,  for  the  purpose  of  the  interest,  there  must  be  an  immediate 
separation  of  the  legacy  from  the  bulk  of  the  estate;  but  a  positive 
direction  to  separate  the  legacy  from  the  estate,  and  to  hold  it  upon 
trust  for  the  legatee  when  he  shall  attain  twenty-five,  'ihe  decision  in 
Vawdry  v.  Geddes  and  other  cases,  in  which  there  were  gifts  over, 
cannot  affect  the  present  question.  Booth  v.  Booth,  4  Ves.  399,  is  cer- 
tainly a  strong  case,  and  goes  far  beyond  the  present,  and  so  does 
Love  V.  L'Estrange,  5  Bro.  P.  C.  59;  and  it  is  a  decision  of  the  House 
of  Lords.  That  case  has  many  points  of  resemblance  to  the  present; 
and  although  Lord  Rosslyn  seems  in  Monkhouse  v.  Holme,  1  Bro.  C.  C. 
298,  to  question  the  principle  of  that  decision,  Sir  W.  Grant,  in  Hanson 
V.  Graham,  6  Ves.  239  (see  p.  248),  justifies  it  upon  grounds,  most  of 
which  apply  to  this  case,  particularly  that  the  fund  was  given  to  trus- 
tees till  the  legatee  should  attain  a  certain  age,  and  that  it  should  then 
be  transferred  to  him ;  from  which  and  other  circumstances  he  thought 
it  was  to  be  inferred,  that  the  fund  was  intended  wholly  for  the  benefit 
of  the  legatee,  although  the  testator  intended  that  the  enjoyment  of 
it  should  be  postponed  till  his  age  of  twenty-four.  Such,  I  think,  was 
clearly  the  intention  of  the  gift  in  this  case. 

It  was  observed  that  the  transfer  is  to  be  made  to  the  great  nephew, 
his  executors,  administrators,  or  assigns.  It  is  true  that  the  addition 
of  tliose  words  do^es  not  prevent  the  lapse  of  a  legacy  by  the  death  of 
the^ legatee  in  the  lifetime  of  the  testator,  but  they  are  not  to  be  ovef- 
1  ooked,  when  the  question  is,  whether  the  legacy  became  vested  bef  ore 
the_age  specified;  because  if  it  were  necessary  that  the  legatee  should 
live  till  that  age  to  be  entitled  to  the  legacy,  then  there  would  be  no 
question  about  his  representatives  at  that  time. 

I  am  therefore  of  opinion  that  ^  order  of  1835  wasjright,  and  that 
the^petition  of  rehearing  must  be  clismissed,  and  with  costs ;  which  I 
should  not  have  ordered,  if  the  Alaster  of  the  Rolls  had  recommended 
the  parties  to  adopt  that  proceeding  upon  a  view  of  the  merits  of  the 
case,  but  which  I  am  now  informed  was  not  the  case.    The  order  for 


218  CONSTRUCTION"  OF  LIMITATIONS  (Part  2 

a  transfer  of  the  funds,  upon  the  regular  evidence  of  the  legatee  hav- 
ing^  attained  twenty-one,  will  tollow  this  jecisioii  ii2on  tlTFconstruction 
of  the  wUT.  ~ 


HOATH  V.  HOATH. 

(Court  of  Cbancery,  1785.    2  Brown,  Cli.  Cas.  3.) 

Upon  a  petition,  the  testator,  by  his  will,  gave  a  sum  of  £100  to 
Thomas  Hoath,  at  his  age  of  twenty-one,  and  directed  the  interest,  in" 
the  meantime,  to  be  paid  to  his  motlier  for  his  maintenance.    Thomas 
Hoath  d}dng  under  age,  the  question  wasT^TTether  this  legacy  was,  or 
was  not,  vested. 

Lord  Chance;IvLOR  [Thurlow]  said,  it  was  impossible  now  to  con- 
tend that  where  the  interest  of  a  legacy  is  given  to  the  legatee,  until 
the  time  oj^gayment  of  the  principaF,  ITiaTt  It  is  not  "a" vested  legacy  ;^ 
and  tliegiying  the  interest  for  his  maintenance_is__^e_cisely  the  same 
thing/ ^ 


BATSFORD  V.  KEBBELL. 
(Court  of  Cbancery,  1797.    3  Ves.  Jr.  363.) 

The  testatrix  gave  and  bequeathed  to  Robert  Endly  the  dividends, 
that  should  become  due  after  her  decease  upon  ibUO  'i'hree  per  cent 
Bank  Annuities,  until  he  should  arrive  at  the  full  age  of  thirty-two 
year_s;  at  which  time  she  directed  her  executors  to  transfer  to~Tiiin 
the  principal  sum  of  £500  of  he^JThree  per  cent  Annuities  for  his  own 
use. 

Robert  Endly  died  before  he  attained  the  age  oi  thirty-two.  The 
bill  Was  filed  by  the  residuary  legatee;  and  the  question  was,  whether 
the  vesting  of  the  legacy  or  the  time  of  payment  only  was  postponed, 
till  the  legatee  should  attain  the  age  of  thirty-two. 

May  12th.  Lord  Chancellor  [Loughborough].  It  strikes  me  at 
present,  that  there  is  a  very  precise  distinction  here  between  the  divi- 
dends and  the  fund.  If  I  construe  it  a  gift  of  the  fund  to  him,  I  must 
strike  out  the  suspension  of  it  till  the  age  of  thirty-two.  I  wish  to  look 
at  the  cases. 

May  13th.  Lord  Chancellor.  I  have  read  over  the  will,  and  have 
looked  into  the  cases,  and  am  confirmed  in  my  opinion.  Upon  the 
cases  it  appears,  that  dividends  are  always  a  distinct  subject  oT  legacy, 
aiid  capital  stock  another  subject  of  legacy.  In  this  _case  there  is  no 
gifFbut  m__the  dfrection  for  payment;  and  Tlie  (^rection  for  payment 
attJlcHei^nly  upon  ajperson  of  the  age  of  thirty^twd."  "Therefore  he 
dtJ^^Tiot~tall  wiTITrn  the  description.  In  alTthe  other  cases  the  thing 
is  given,  and  the  profit  of  the  thing  is  given. 

11  See,  also,  In  re  Hart's  Trusts,  3  De  G.  &  J.  195  (1858). 


Ch.  4)  VESTING  OF   LEGACIES  219 

Declare,  that  this  legacy  of  i.500  stack  J",  t^e  .event,  that  has  hap- 
pened, felMntojhe_ixsjduej^i2on_^^  ;  and  di- 
rect a  transfer  to  the  plaintiff. 


HANSON  V.  GRAHAM. 
(Court  of  Chancery,  1801.     6  Ves.  239.) 

James  Graham  by  his  will,  dated  the  18th  of  March,  1771,  gave  to_ 
MarvHanson,  Thomas  Hanson,  jmd^Rebecca  Graham  Hanson^,  the 
three  _childrenof^  his  daughter  Mary  Hanson,  £500  apiece  o"f  Foujr 
per  cent  Consolidated  Bank  Annuities,  when  they  should  respectively 
attam  their  ages  of  twenty~one  years  or  day  or^days  of  marriage,  whicH 
s liouMJi rst_Mj3p^n7  f)rovided,"lt  was  with  such  consent  of  hTs  execu- 
tors  and  trustees  as  tnerem  mentioned ;  and  he  declared,  his  mind  aiid. 
wTTiNvas^  that  the  mterest""of~said  several  £500  amounting  in  the  whole 
to  £1500  Four  per  ceiit  Consolidated  Bank  Annuities,  so  given  to  his 
three  grandcliildren,  as  afor'esaid,  as  often  as  the  same  shoiftd  l^ecom^ 
due  ITncl  payable^  should  be  laid  oujt_at^e  discretion~oniTs~exec'ators 
and  truygegjn^suchriiTaiiner  asthey  or  the  survivor  oF  them  should 
think  proper  for  the  benefit  of  his  said  grandchilHren,  till  They  ^should 
attattr-ttrelr  respective  ages  of  twenty-one  years  or  day  or  days  of  mar- 
riage, and  to  and  for  no  other  use,  intent,  or  purpose  whatsoever ;  and 
after  devising  his  real  and  leasehold  estates,  and  giving  two  legacies 
of  £10  each,  he  gave  all  the  residue  of  his  personal  estate  to  his  son 
Isaac  Graham;   and  appointed  him  sole  executor. 

The  testator  died  soon  after  the  execution  of  his  will.  Afterwards, 
in  1774,  Rebecca  Graham  Hanson  died  intestate  at  the  age  of  nine 
years ;  leaving  her  mother  and  her  bTother  "Thoma.s  Hanson  and  her 
sister  Mary  Coates7"'sirrviving.  The  mother  died ;  and  bequeathed  all 
her  personal  estate  to  her^son  Thomas  Hanson;  and  appointed  him 
■executor. 

The  bill  was  filed  by  Thomas  Hanson  and  Mary  Coates  against 
Isaac  Graham  for  an  account  of  what  was  due  in  respect  of  Rebecca 
Graham  Hanson's  legacy  of  £500  &c. 

The  Master  oe  the  Rolls  [Sir  William  Grant].  The  question 
is,  whether  this  legacy  vested.  It  is  contended  for  the  plaintiffs,  that 
it  did  vest,  upon  two  grounds :  1st,  they  say,  it  would  have  been  vested ; 
supposing,  there  was  nothing  more  than  the  words,  with  which  the 
clause  begins ;  and  that  if  it  rested  upon  a  legacy,  when  the  legatee 
should  attain  the  age  of  twenty-one  or  marriage,  it  is  now  settled,  that 
these  words  give  a  vested  interest ;  and  that  is  established  by  May 
V.  Wood,  3  Bro.  C.  C.  471 ;  and  undoubtedly  a  proposition  is  there 
laid  down ;  which  would  have  the  effect  of  making  this  a  vested  legacy ; 
if  it  is  true  in  the  extent  there  stated.  The  proposition  is  there  laid 
down  very  broadly  and  generally  by  the  late  Master  of  the  Rolls ;  that 
all  the  cases  for  half  a  century  upon  pecuniary  legacies  have  deter- 


220  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

mined  the  word  "when,"  not  as  denoting  a  condition  precedent,  but 
as  only  marking_the  periodj_when_thejxirty  sliall  havetlie  Full  benefit 
of  the' gift ;  except  something  appears  upon  theface  ot  tlie'wili  to 
show,  that  his  bounty  shall  not  take  place,  unless  the  time  actually  ar- 
rived. 

This  proposition  is  stated  so  broadly  and  generally,  that  I  rather 
doubt  the  correctness  of  the  report.  Considering  the  well-known  dili- 
gence of  the  late  Master  of  the  Rolls  in  examining  cases,  and  his  un- 
common accuracy  in  stating  the  result  of  them,  he  would  hardly  have 
drawn  this  conclusion  from  an  examination  of  the  cases ;  for  no  case 
has  determined,  that  the  word  "when,"  as  referred  to  a  period  of  life, 
standing  by  itself,  and  unqualified  by  any  words  or  circumstances,  has 
been  ever  held  to  denote  merely  the  time,  at  which  it  is  to  take  effect 
in  possession;  but  standing  so-unqualified  and  uncontrolled  it  is  a  word 
of  condition :  denoting  the  time,  when  the  gift  is  to  take  effect  in  sub- 
stance. That  this  is  so,  is  evident  upon  mere  general  principles ;  for 
it  is  just  the  same,  speaking  of  an  uncertain  event,  whether  you  say 
"when"  or  "if"  it  shall  happen.  Until  it  happens,  that,  which  is 
grounded  upon  it,  cannot  take  place.  In  the  civil  law,  the  words  "cum" 
and  "si,"  as  referred  to  this  subject,  are  precisely  equivalent;  and 
from  that  law  we  borrow  all,  or  at  least  the  greatest  part,  of  our  rules 
upon  legacies;  and  particularly  the  rule  upon  the  subject  immediately 
under  consideration  in  that  case,  with  reference  to  the  words,  by  which 
a  testator  denotes  his  intention  as  to  the  gift  taking  eft'ect,  or  taking 
effect  in  possession.    In  the  Digest  it  is  thus  laid  down : — 

"Si  Titio,  cum  is  annorum  quatuordecim  esset  factus,  legatus  fuerit, 
et  is  ante  quatuordecimum  annum  decesserit,  verum  est,  ad  heredem 
ejus  legatum  non  transire:  quoniam  non  solum  diem,  sed  et  condi- 
tionem  hoc  legatum  in  se  continet ;  si  effectus  esset  annorum  quatuor- 
decim. Qui  autem  in  rerum  natura  non  esset,  annorum  quatuordecim 
non  esse  non  intellegeretur;  Nee  interest  utruni  scribatur,  si  annorum 
quatuordecim  factus  erit,  an  ita :  cum  priore  scriptura  per  conditionem 
tempus  demonstratur ;  sequenti  per  tempus  conditio :  utrobique  tamen 
eadem  conditio  est." 

It  is  very  true:  the  word  "when,"  not  so  standing  by  itself,  but 
coupled  with  other  expressions  or  circumstances,  that  have  a  reference 
to  the  time,  at  which  the  possession  of  the  thing  is  to  take  place,  has 
been  held  by  the  civil  law  not  to  have  so  absolute  a  sense  that  it  cannot 
possibly  be  controlled.  Another  passage  in  the  Digest  is  thus  ex- 
pressed : 

"Seius  Saturninus  Archigubernus  ex  classe  Eritanica  testamento 
fiduciarium  reliquit  heredem  Valerium  INIaximum  trierarchum :  a  quo 
petiit  ut  filio  suo  Seio  Oceano,  cum  ad  annos  sedecim  pervenisset, 
hereditatem  restitueret.  Seius  Oceanus,  antequam  impleret  annos,  de- 
functus  est." 

Then  it  states,  that  a  claim  was  made  by  the  uncle  of  Seius,  as  next 
of  kin,  which  was  resisted  by  the  fiduciary  heir,  who  contended,  that^ 


Ch.  4)  VESTING  OF   LEGACIES  221 

as  Seius  had  not  lived  to  the  age  of  sixteen,  it  was  not  vested.  The 
opinion  is  this : 

"Si  Seius  Oceanus,  cui  fideicommissa  hereditas  ex  testamento  Seii 
Saturnini,  cum  annos  sedecim  haberet,  a  \'alerio  IMaximo  fiduciario 
herede  restitui  debet,  priusquam  praefinitum  tempus  aetatis  impleret, 
decessit:  fiduciaria  hereditas  ad  eum  pertinet,  ad  quern  csetera  bona 
Oceani  pertinuerint :  quoniam  dies  fideicommissi  vivo  Oceano  cessit : 
scilicet  si  prorogando  tempus  solutionis,  tutelam  magis  heredi  fidu- 
ciario permisisse,  quam  incertum  diem  fideicommissi  constituisse, 
videatur." 

This  distinction  was  transferred  from  the  civil  law  to  ours ;  at  least 
so  far  clearly  as  regards  pecuniary  legacies.  In  the  case  cited,  Staple- 
ton  V.  Cheales,  Pre.  Ch.  317,  it  was  clearly  held,  that  the  expressions 
"at  twenty-one,"  or  "if,"  or  "when,"  he  shall  attain  twenty-one,  were 
all  one  and  the  same ;  and  in  each  of  those  cases  if  the  legatee  died 
before  that  time,  the  legacy  lapsed.  I  do  not  find  any  case,  in  which 
this  position  has  been  ever  contradicted.  In  Fonnereau  v.  Fonnereau, 
3  Atk.  645,  it  was  clear,  if  it  had  stood  upon  the  first  part  of  that  be- 
quest, it  would  have  been  held  not  vested.  Lord  Hardwicke  rests  en- 
tirely upon  the  subsequent  words,  as  controlling  the  word  "when ;"  as 
it  would  have  operated,  standing  alone.  That  will  sets  out  precisely 
as  this  does;  but  when  it  went  on  with  words,  making  the  intention 
clear,  giving  interest  for  his  education,  with  a  power  to  the  trustees  to 
lay  out  any  part  of  the  principal  to  put  him  out  apprentice,  and  the 
remainder  to  be  paid  to  him,  when  he  should  attain  the  age  of  twenty- 
five,  it  was  clear,  upon  the  whole,  nothing  but  the  payment  was  post- 
poned. 

A  distinction  has  been  introduced  between  the  effect  of  giving  a 
legacy  at  twenty-one  and  a  legacy  payable  at  twenty-one.  That  is  also 
borrowed  from  the  civil  law.    The  Code  thus  states  it : 

"Ex  his  verbis,  do  lego  .■Elia;  Severinae  filiae  meas  et  Secundje  decem : 
quae  legata  accipere  debebit,  cum  ad  legitimum  statum  pervenerit :  non 
conditio  fideicommisso  vel  legato  inserta :  sed  petitio  in  tempus  le- 
gitimae  aetatis  dilata  videtur :" 

For  there  the  words  were,  that  the  time  of  payment  was  to  be  at 
her  legitimate  age: 

"Et  ideo  si  .^lia  Severina  filia  testatoris,  cui  legatum  relictum  est, 
die  legati  cedente,  via  functa  est:  ad  heredem  suum  actionem  trans- 
misit;  scilicet  ut  eo  tempore  solutio  fiat,  quo  Severina,  si  rebus  hu- 
manis  subtracta  non  fuisset,  vicessimum  quintum  annum  aetatis  im- 
plesset." 

This  distinction  however  has  been  held  by  some  equity  judges  al- 
together without  foundation ;  and  by  others  it  has  been  treated  as  too 
refined.  Lord  Keeper  Wright,  in  Yates  v.  Fettiplace,  Pre.  Ch.  140, 
alluding  to  the  distinction  in  Godolphin  and  Swinburne  from  the  civil 
law,  declared  it  altogether  without  foundation.  Lord  Cowper  acknowl- 
edged, that  it  was  at  least  a  refi:  em.ent;  but  he  thought,  it  was  now  well 


222  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

established.  Lord  Hardwicke  likewise  said,  it  was  originally  a  refine- 
ment. But  in  what  did  that  refinement  consist  ?  It  was  not  in  holding, 
that  it  should  not  vest  before  the  age  of  twenty-one,  but  in  holding, 
that  it  should  vest,  though  the  party  should  not  attain  that  age :  theii' 
opinion  being  that  it  should  not  vest.  Then  wliy  should  we  refine 
uponaj-efine.menf  by  deviatirjCT_gtri1  more,  andjipldingjirbitranly,  that 
the  word  "when"  standing  by  itself  does^nol  imjjort  condition ;  I  say, 
that  standmg  by  itself  it  does  import  condition;  and  it  requires  other 
words  to  show,  it  was  meant  to  defer  payment.  But  according  to  the 
report  of  the  judgment  in  May  v.  Wood,  it  is  quite  the  reverse;  that 
standing  alone  it  imports  delay  of  payment ;  and  other  words  are  nec- 
essary to  show  a  condition.  That  is  a  distinction  upon  a  distinction; 
which  original  distinction  has  by  several  great  judges  been  held  to 
have  been  originally  a  refinement.  The  only  cases  alluded  to  in  May  v. 
Wood  are  cases  of  real  estate ;  beginning  with  Boraston's  Case,  3  Co. 
16;  and  ending  with  Doe  v.  Lea,  3  Term  Rep.  B.  R.  41.  The  princi- 
ple of  tliem  all  is  stated  by  Lord  Mansfield  in  Goodtitle  v.  Whitby,  1 
Bur.  228,  in  a  way  that  renders  them  perfectly  consistent  with  the 
opinion  I  entertain  as  to  the  word  "when,"  standing  by  itself,  unquali- 
fied and  uncontrolled.  Lord  Mansfield  there  lays  down  these  rules  of 
construction : 

"1st,  wherever  the  whole  property  is  devised,  with  a  particular 
interest  given  out  of  it,  it  operates  by  way  of  exception  out  of  the  ab- 
solute property." 

"2dly,  where  an  absolute  property  is  given,  and  a  particular  inter- 
est in  the  mean  time,  as  until  the  devisee  shall  come  of  age,  &c.,  and 
when  he  shall  come  of  age,  &c.,  then  to  him  &c.,  the  rule  is,  that  that 
shall  not  operate  as  a  condition  precedent,  but  as  a  description  of  the 
time,  when  the  remainder-man  is  to  take  in  possession."  ^- 

There  could  be  no  doubt  of  the  intention  there.  Everything  was 
given  to  the  trustees  for  the  benefit  of  the  infant.  He  was  entitled 
ultimately  to  have  tlie  whole.  The  reason  of  giving  to  the  trustees  in 
the  ,mean  time  evidently  was,  that  he  was  not  intended  to  have  the 
possession  and  management  until  the  age  of  twenty-one. 

Upon  exactly  the  same  ground  was  Boraston's  Case.  It  was  not 
alleged  in  that  case,  that  these  were  not  words  of  contingency  taken 
by  themselves :  but  it  was  said,  you  must  model  these  unapt  words : 
so  as  to  get  at  the  intention  from  the  whole  will.  The  evident  intention 
was  to  defer  payment  for  a  particular  purpose ;  as  if  he  had  calculated, 
how  many  years  it  would  take  to  pay  off  his  debts,  and  in  how  many 
years  Hugh  Boraston  would  attain  the  age  of  twenty-one ;  and  if  given 
to  the  executors,  with  remainder  to  him  at  twenty-one,  it  would  be 
clear  vested  remainder.  The  court  approves  that  argument  of  the 
counsel ;   but  does  not  say,  that  "when,"  standing  by  itself,  would  not 

12  These  rules  are  applied  to  pecuniary  legacies,  Lane  v.  Goudge,  9  Ves. 
225  (1803) ;   Packham  v.  Gregory,  4  Hare,  39G  (1845). 


Ch.  4)  VESTING  OF   LEGACIES  223 

have  made  a  condition.  So,  in  Manfield  v.  Dugard,  1  Eq.  Ca.  Ab. 
195,  it  was  clear,  the  testator  meant  to  postpone  the  enjoyment  of  the 
son  for  the  sake  of  the  antecedent  benefit  of  the  wife:  but  he  clearly 
meant  a  vested  remainder,  not  contingent,  whether  the  son  should  take 
any  benefit  at  all  in  the  estate.  But  that  makes  a  very  different  ques- 
tion from  this ;  whether,  where  there  is  no  precedent  estate,  no  purpose 
whatsoever,  for  which  the  enjoyment  was  to  be  postponed,  you  shall 
say,  the  enjoyment  only  is  to  be  postponed.  So  in  Doe  v.  Lea  the 
devisee  was  intended  to  have  the  whole  benefit :  but  trustees  were  inter- 
posed, to  keep  the  management  of  the  estate,  until  he  should  attain  the 
age  of  twenty-four ;  with  a  charge  out  of  the  rents  and  profits  to  keep 
the  building  in  repair.  There  was  a  reason  for  postponing  the  posses- 
sion;  and  it  was  evident,  nothing  but  the  enjoyment  was  intended  to 
be  postponed.  It  was  not  a  bare  devise  to  him,  when  he  should  attain 
twenty-four. 

If  those  cases  therefore  had  occurred  as  to  pecuniary  legacies,  there 
is  no  ground  to  say,  the  decision  ought  to  have  been  dififerent ;  for  from 
the  very  same  circumstances  and  expressions  it  might  be  collected,  that 
the  word  "when"  was  used,  not  as  a  condition,  but  merely  to  post- 
pone the  enjoyment;  the  possession  in  the  mean  time  being  disposed 
of  in  another  way.  It  is  impossible,  that  Lord  Mansfield,  and  there  is 
nothing  in  his  judgment  indicating  it,  could  have  considered  the  word 
"when"  standing  by  itself,  as  other  than  a  word  of  condition.  It  is 
impossible ;  for  only  two  days  before,  in  Gross  v.  Nelson,  1  Bur.  226, 
having  occasion  to  speak  of  legacies,  upon  a  note  of  hand,  which  he 
compared  to  the  case  of  a  legacy,  he  says,  "but  if  the  time  is  annexed 
to  the  substance  of  the  gift,  as  a  legacy,  if,  or  when,  he  shall  attain 
twenty-one,  it  will  not  vest,  before  that  contingency  happens."  He 
considered  "when"  precisely  the  same  as  "if." 

Love  V.  L'Estrange,  3  Bro.  P.  C.  ZZ7,  seems  to  have  been  consider- 
ed a  strong  authority  for  holding  "when"  to  operate  conditionally.  The 
late  Lord  Chancellor  was  so  strongly  impressed  with  the  idea  he  had 
thrown  out  at  an  early  period  in  Monkhouse  v.  Holme,  1  Bro.  C.  C. 
298,  that  he  found  it  difficult  to  account  for  it  otherwise  than  upon 
the  distinction  as  to  a  residue ;  which  the  late  Master  of  the  Rolls  in 
Booth  V.  Booth  acknowledged  there  might  be.  But  it  was  not  necessary 
to  resort  to  that ;  for  Love  v.  L'Estrange  may  be  warranted  upon  the 
principles  laid  down  in  Goodtitle  v.  Whitby.  It  w^as  not  a  simple,  un- 
qualified gift ;  but  there  were  many  circumstances  to  show,  that  Walter 
Nash  was  meant  to  have  the  benefit  absolutely;  and  that  the  enjoy- 
ment only  was  postponed ;  the  testator  giving  it  to  trustees  in  the  mean 
time;  and  applying  a  reason  for  withholding  the  enjoyment  from  this 
minor;  that  he  wished  him  to  follow  his  trade  as  a  journeyman;  with 
which  object  he  naturally  thought  that  fortune  would  interfere;  and 
therefore  he  postpones  the  enjoyment  of  it  until  the  age  of  twenty-four. 
But  he  gives  it  to  trustees  entirely  and  absolutely  for  the  benefit  of 
Walter  Nash ;   to  improve  it  for  his  benefit ;   to  transfer  the  whole  to 


224  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

him,  when  he  arrives  at  that  age :  and  to  make  him  a  certain  allowance 
in  the  mean  time.  That  is  very  different  from  a  simple  bequest  to  him, 
when  twenty- four ;  for  if  that  had  been  a  legacy,  it  would  have  been 
separated  from  the  residue  immediately  upon  the  testator's  death ;  and 
must  have  been  paid  over  to  the  trustees  immediately :  and  they  would 
have  managed  it,  until  the  legatee  had  attained  the  age  of  twenty- four. 

Upon  the  whole  view  of  the  cases,  and  taking  the  reason  of  the  doc- 
trine and  the  origin  of  it  into  consideration,  there  is  no  ground  wdiat- 
soever  for  the  generality  of  the  proposition,  which  the  Master  of  the 
Rolls  is  represented  to  have  laid  down  in  May  v.  Wood.  To  that 
proposition  the  following  words  are  added : 

"And  not,  where  he  has  merely  used  the  word  'when'  for  the  sole 
purpose  of  postponing  the  time  of  payment." 

If  the  Master  of  the  Rolls  meant  so  to  qualify  his  former  proposi- 
tion, that  I  admit;  and  have  no  difficulty  in  agreeing  to  it.  But  it  is 
evident,  tliat  this  is  inaccurately  taken ;  for  the  two  parts  of  the  proposi- 
tion do  not  accord.  First,  it  is  laid  down  generally,  "that  it  requires 
words  to  show,  'when'  does  operate  conditionally :"  in  the  latter  part 
it  is  stated,  that  if  it  appears,  "when"  is  used  only  for  postponing  pay- 
ment, it  shall  not  operate  farther.    Nothing  can  be  clearer  than  that. 

In  this  cause  therefore  I  should  have  determined  against  the  plaintiffs  ; 
if  it  stood  merely  upon  the  first  words.  But  then  it  is  contended,  that 
they  are  entitled ;  because  interest  is  given ;  and  that  they  come  within 
an  established  rule  of  the  court;  that  though  such  words  are  used  as 
would  not  have  vested  the  legacy,  yet  the  circumstance  of  giving  interest 
is  an  indication  of  intention,  explanatory ;  and  denoting,  that  the  testa- 
tor meant  the  whole  legacy  to  belong  to  the  legatee.  On  the  other  side 
it  was  contended,  tliat  the  interest  is  not  so  given  as  to  bring  it  within 
the  general  rule,  but  what  is  given  is  more  like  maintenance.  It  is 
true,  it  has  been  held,  that  has  not  the  same  effect  as  giving  interest; 
upon  this  principle ;  that  nothing' more  than  a  maintenance  can  be  called 
for ;  what  can  be  shown  to  be  necessary  for  maintenance :  however 
large  the  interest  may  be;  and  therefore  what  is  not  taken  out  of  the 
fund  for  maintenance  must  follow  the  fate  of  the  principal ;  whatever 
that  may  be.  But  by  this  will  it  is  clear,  the  whole  interest  is  given. 
Can  there  be  any  doubt,  that  in  this  case  all  the  interest  became,  as  it 
fell  due,  the  absolute  property  of  these  infants,  as  separated  altogether 
from  the  residue?  All,  that  is  left  to  the  trustees,  is  to  determine,  in 
what  manner  it  may  be  best  employed.  It  is  not  merely  so  much  of 
the  interest  as  shall  be  necessary  for  the  maintenance,  but  the  interest 
entirely,  separated  from  the  principal.  It  is  therefore  the  simple  case 
of  interest.  It  was  observed  for  the  defendants,  that  here  is  not  only 
the  period  of  the  age,  but  also  marriage  with  consent ;  and  it  was  asked, 
supposing  any  of  them  had  married  without  the  consent  of  the  execu- 
tors, was  it  to  vest?  That  is  just  the  same  question.  If  it  is  shifted, 
to  the  question,  whether  it  is  to  be  paid,  if  any  of  them  married  with- 
out consent,  the  executors  might  say,  no :   the  period  of  payment  had 


Ch.  4)  VESTING  OP   LEGACIES  225 

not  arrived.  But  marriage  with  consent  is  not  a  condition  precedent; 
for  at  the  age  of  twenty-one,  whether  married  with  consent  or  not, 
they  would  be  entitled.  That  therefore,  not  operating  as  a  condition 
precedent,  does  not  make  any  material  distinction.  The  legacy  is  ac- 
companied  with  an  absolute  gift  of  the  interest ;  _which_a_ccording  to 
the  established  rule  has  the  effect  of  vesting  it.  I  am  therefore  of  opin- 
ion,  that  tlie  plaTntrffs  are  entitled." 


In  re  ASHMORE'S  TRUSTS. 

(Court  of  Chancery,  18G9.     L.  R.  9  Eq.  99.) 

Petition. 

Elizabeth  Ashmore,  widow,  by  her  will  dated  the  14th  of  May,  1844, 
bequeathed  all  her  residuary  personal  estate  to  trustees  upon  trust  to 
assign  and  transfer  a  leasehold  house  as  therein  mentioned ;  and  further 
-Upon  trust,  after  the  decease  of  her  daughter,  Mary  Ann  Hopkins,  to 
assign^transter,  and  pav  ilOQQ  (part  of  her  said  estate}^or_the_jri- 
vestments  thereof,  and  all  other  her  moneys,  estate,  and  effects,  unto 
and~~equally  between^  suctr~of  Ifer  tour  grandchildren,  James  Joseph 
Hopkins,  George  Thomas  Hopkins,  Elizabeth  l:Iopkms,  and  Robert 
Hopkins,  as  should  be  living  at  the_decease  of  her  (testatrix's)  said 
daughter,  and  as  should  then  have  attained  or  should  thereafter  live 
to  attain  me  age  of  twenty-one  years ;  and  in  the  mean  time  to  apply 
the  dividends  and  annual  proceeds  of  the  share  or  shares  of  such  of 
them  as  sliould  be  underjthe  age_of  twenty-one  vears  or  so  miuch  there- 
of as  might  be  necessarv.  in  or  towards  his,  her,  or  their  maintenance 
and  education" 

TestatrixTHen  continued  as  follows : 

"Provided,  and  my  will  is,  that  in  case  any  of  my  said  four  grand- 
children shall  die  in  the  lifetime  of  my  said  daughter  leaving  lawful 
issue,  them,  liim,  or  her  survTvTng,  the  share  or  shares  of  such  of  them 
so  dying  shall  be  "assigned  and  transferred  to  such_issue_respectively, 
in  equal  shares  and  proportions,  on  their  attaining  the  age  of  twenty- 
one  years,  and  the  dividends  and  proceeds  thereof  in  the  mean  time  to 
be  applied  in  or  towards  their  rnnintenance  nnd  eduratinn." 

'testatrix  died  on  the  13th  of  November,  1850. 

]\Iary  AnnHopkins.  the  daughter,  died  on  the  31st  of  August,  1859. 
At  that  dateone  of  the  grandchildren,  namely.  J::!<iizabetli  "Andrews, 
formerly  Hopkins,  was  dead!  " 

isAccord :  In  re  Bunn,  16  Ch,  Div.  47  (1880) ;  Scotnev  v.  Lomer,  29  Ch. 
Div,  .535,  54  L.  J.  Ch.  558,  31  Ch.  Div.  380  (1885) ;  Bolding  v,  Strugnell,  24  W. 
K.  339,  45  L.  J.  Ch.  208  (1876). 

So  where  the  legacy  is  contained  only  in  the  direction  to  pay  upon  the  leg- 
atee's marriage,  yet  the  gift  of  interest  or  ineonio  in  the  meantime  vests  the 
legacy  hofore  marriase.  Vize  v.  Stonev,  1  Dr.  &  War.  337,  2  Dr.  &  Wal.  659; 
In  re  Wrey,  30  Ch.  Div.  507,  54  L.  J.  Ch.  1098. 

4  Kales  Prop. — 15 


226  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

Elizabeth  Andrews  had  had  four  children,  nameTy,  the  petitioner, 
Edward,  who  was  born  on  the  2d  of  July,  IMSj  _Eli^b^th',  who  waF" 
borrTon  the  27th  orFebruary7TSS0,  and  \vlib  died  in  L851 ;  Mary  Ann, 
wht?  was  born  m  IgSTX-^nd  Emma,  ^ho  was  born  in  1852. 

Since  the  death  of  Mary  Ann  Hopkins,  ]\Iary~7VtTn  and  Emma 
Andrews  had  both  died~inf ahts,~teavmgj^^^petitipner  EdAvard  Andrews 
the  sole  survivor  of  the  issue  of  Elizabeth  Andrews.  ~ 

I'he  petitioner  attained  twenty-one  on  the  2d  of  July,  1869;  and  the 
question  now  between  him  and  his  father,  who  had  taken  out  adminis- 
tration to  the  infants,  or  some  of  them,  was,  whether  the  interests  of 
the  infants  in  their  mother's  share  vested  at  the^eath  of  their  mother, 
or  Whether  such  share  vestedin  the  only  one  of  the  issue  who  livedto 
attain  twenty-one. 

"i  he  surviving  trustee  of  the  will  having  paid  Mrs.  Andrews'  fourth 
share  into  court,  the  petitioner  now  prayed  that  it  might  be  paid  out  to 
his  solicitor. 

Sir  W.  M.  James,  V.  C.  I  tliink,  on  the  whole,  I  cannot  distin- 
guish this  case  from  Pulsford  v.  Hunter,  3  Bro.  C.  C.  416.  My  first 
impression  was  the  other  way,  but  Pulsford  v.  Hunter  seems  to  me  to 
be  exactly  the  same  case,  with  a  slight  alteration  of  the  order  of  tlie 
words. 

In  Pulsford  v.  Hunter  a  testator,  after  giving  two  annuities,  enu- 
merated some  sums  of  stock  then  in  his  possession,  and  proceeded  as 
f ohows :  "the  interest  of  the  remainder  part  to  be  applied  for  the  use 
and  education  of  my  grandchildren  till  they  arrive  at  the  age  of  twenty- 
one  years,  and  the  principal  to  be  then  equally  divided  amongst  them ;" 
and  the  Lord  Chancellor  (Eord  Loughborough)  thought  that  howz. 
eyer  it  might  be  where  interest  was  given^j;;e;^that  the  giving  maiiite_- 
nance  was  a  different  case,  and_was_not  equivalent  to  j^ivmg  interest. 

In  this  case  the  fund  is  given  to  the  issue  on  their  attaining  twenty- 
one,  and  the  dividends  and  proceeds  in  the  mean  time  are  to  be  applied 
in  or  towards  their  maintenance  and  education. 

I  am  really  not  able  substantially  to  distinguish  these  two  cases. 

I  think  it  very  probable  that  the  decision  may  be  sustained  by  an- 
other consideration, — namely,  that  this  is  a  gift  not  of  a  separate 
share  to  each  of  the  issue  on  attaining  twenty-oneTwith  a  gitt_ot  the_ 
dividends  and  proceeds  thereof  in  the  meantime  to  be  applied  in  main- 
tenance;  but  a.  gllTof  aTund  to  each  ol  the  issue  on  attainlng^twenty-' 
one  in  equal  shares  and  proportions,  and  a  gift  of  the  dividends  and 
interestTh  the  mean  lirne:  ~  ~  ~~~ 

In  this  respect  the  case  is  exactly  that  of  Pulsford  v.  Hunter.  That 
authority  has  never  been  questioned,  and  certainly  never  overruled. 

There  will  be  a  declaration  to  the  effect  that  the  interests  of  those  of 
the  issue  who  died  under  twenty-one  passed  to  the  survivors.^* 

14  Butcher  v.  Leach  (1843)  5  Beav.  392  (income  for  maintenance) ;  In  re 
Morris  (1885)  33  Weekly  Rep.  895  (income  for  maintenance).     Bacon,  V.  C, 


Ch.  4)  VESTING  OF  LEGACIES  227 

FOX  V.  FOX. 

(Court  of  Chancery,  1875.    L.  R.  19  Eq.  286.) 

Thomas  Were  Fox  the  elder,  by  his  will,  dated  the  9th  of  August, 
1859,  gave,  devised,  and  bequeathed  unto  William  Fox,  Mark  Stephens 
Grigg,  John  Williams,  and  Thomas  Were  Fox,  the  son,  and  Henry 
Fox,  his  real  and  personal  estate  not  thereby  specifically  disposed  of, 
subject  to  the  pecuniary  legacies  and  annuity  thereby  bequeathed,  and 
to  the  payment  of  his  debts,  funeral  and  testamentary  expenses,  upon 
trust,  in  the  first  place,  to  raise  thereout  and  set  apart  therefrom  the 
sum  of  £15,000,  and  to  invest  the  same  sum  in  their  names  as  therein 
mentioned,  and  to  pay  the  income  of  the  said  sum  of  £15,000  so  in- 
vested as  aforesaid  to  his  wife  half-yearly  during  lierlife,  and  after 
her  decease  to  pay  the  income  of  one  equal  htth  part  ol  the  said  suiTTof 
il5',000  so  mvested  as  aforesaid  to  Ihomas  Were  box,  the  son,  haH- 
yearly  during  his  life,  and  after  his  decease  to  pay  the  said  income" 
thereof  half-yearly  to  his  widow,  if  he  should  leave  a  widow,  during 
her  widowhood;  but  if  he  should  not  leave  a  widow,  or  if  he  should, 
then,  so  soon  as  she  should  marry  again  or  die,  to  divide  and  transfer 
the  said  eqiial  one-fifth  part  of  tlie  said  principal  jum  o^ril5,00u  to  and" 
amongst  the  children  of  the  said  Thomas  Were  Fox,  the  son,  equally 
as  and  when  they  sliould  respectively  attain  the  age  of  twenty-five 
years ;  but  if  he  should  have  but  one  child,  then  to  transfer  the  whole 
of  "the  said  one-fifth  part  to  such  only  child,  applying  from  time  to 
time  the  income  of  the  presumptive  share  of  each  child  (if  more  than 
one),  or  the  income  of  the  whole  it  an  only  child,  or  so  much  thereof 
respectivelyas_the^  trustees  or  trustee  for  the  time  being  might  think 
proper,  to  and  for  his  and  her  maintenance  and  education~until  slich 
share~or  entirety,  as  the  case  might  beT^ould  become  payable  as  afore- 
said ;  but  iTThe  said  Thomas  Were  Fox,  the  son,  should  leave  no  chil- 
dren or  child  him  surviving,  or  if  he  should  and  they  should  all  die  be- 
fore attaining  the  age  of  twenty-five  years,  then  to  pay  and  transfer 
the  said  fifth  part  to  the  testator's  son,  the  said  Henry  Fox,  if  then  liv- 
ing, or  if  dead,  to  his  children  equally  amongst  them  (if  more  than  one) 
on  attaining  the  age  of  twenty-five  years  respectively. 

said:  "There  are  here  two  distinct  gifts:  one  gift  to  the  trustee  of  the  in- 
come to  be  applied  for  the  maintenance  and  education  of  two  children.  But 
there  is  no  division  of  the  income  equally  between  the  two,  and  no  gift  of 
any  specified  part  of  the  income  to  either  child.  There  is  a  gift  of  the  corpus 
etiually  between  the  two  children,  but  only  when  they  shall  respectively  at- 
tain twenty -one;  there  is,  therefore,  no  gift  of  the  corpus  till  they  attain 
twenty-one.  This  case  is,  therefore,  distinguishable  from  the  cases  cited  by 
]\tr.  Stirling  where  the  whole  income  of  a  i^lteclBc  fund  \v  tuj  dlrect(.^d  Jr>  hp  .q-pr 
plied  td\Vurda  Ihfe  imilrrt^hance  of  a  particular  pergorT  Tliat  is  not  the  case 
h^TC:  'Rrcrc  muiAt  be  a  deolaiallTTn  that  there  is  a  lapse  as  to  a  moiety  of  the 
residuary  estate  of  this  testatrix."  In  re  Martin  (1887)  57  L.  T.  K.  (N.  S.) 
471  (income  for  maintenance) ;  Spencer  v.  Wilson,  L.  R.  16  Eq.  501  (here  the 
income  was  to  be  divided  among  the  members  of  the  class,  but  was  not  di- 
rected to  be  for  maintenance). 


228  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

The  testator  died  in  February,  1860,  and  his  widow  in  July,  1862. 

Thomas  Were  Fox,  the  son,  died  on  the  4th  of  July,  1870,  leaving  a 
widow  and  nine  children,  of  whom  the  eldest  was  born  on  the  1st  of 
May,  1854. 

The  widow  of  Thomas  Were  Fox,  the  son,  married  a  second  time  in 
August,  1873. 

The  question  was,  whether  the  gift  of  one  fifth  of  the^sum  of  il5,- 
000  by  the  will  of  Thomas  Were  Fox,  "the  elder,  to~the^children  of 
T1v5^aTWprp21inx7^^^on7 w^    vafid^ 

"""Sir^gTJessEL,  M.  R.  The  first  question  is,  whether  a  gift  con- 
tained in  a  direction  to  pay  to  legatees  on  attaining  a  certain  age, 
followed  by  a  gift  of  the  interest  for  maintenance,  is  vested? 

In  the  case  of  In  re  Ashmore's  Trusts,  Law  Rep.  9  Eq.  99,  Lord 
Justice  James,  when  Vice-Chancellor,  held  that  a  similar  gift  was  not 
vested.  He  admitted  that  his  first  impression  was  the  other  way,  but 
he  decided  as  he  did  on  the  authority  of  an  old  case,  Pulsford  v.  Hunter, 
3  Bro.  C.  C.  416.  I  cannot  help  thinking  there  is  some  mistake  in  the 
report  of  Pulsford  v.  Hunter.  The  observations  in  the  judgment,  as 
reported,  seem  to  me  to  point,  not  to  a  gift  of  the  interest  for  mainte- 
nance, but  to  a  gift  of  maintenance  out  of  the  interest,  which  is  not  in 
accordance  with  the  terms  of  the  will  as  given  in  the  report.  However 
that  may  be,  it  seems  to  me  that  the  law  is  clearly  laid  down  in  subse- 
quent authorities. 

In  Watson  v.  Hayes,  5  My.  &  Cr.  125,  133,  Lord  Cottenham  says : 
"It  is  well  known  that  a  legacy  which  w^ould,  upon  the  terms  of  the 
gift,  be  contingent  upon  the  legatee  attaining  a  certain  age,  may  be- 
come vested  by  a  gift  of  the  ixiterest  in  the  mean  time,  whether  direct 
or  in  the  form  of  maintenance,  provided  it  be  of  the  whole  interest; 
which  clearly  marks  the  principle  that  it  is  the  gift  of  the  whole  interest 
which  effects  the  vesting  of  the  legacy.  *  *  *  It  is  therefore  the 
giving  the  interest  which  is  held  to  effect  the  vesting  of  the  legacy,  and 
not  the  giving  maintenance ;  but  when  maintenance  is  given,  questions 
arise  whether  it  be  a  distinct  gift,  or  merely  a  direction  as  to  the  appli- 
cation of  the  interest ;  and  if  it  be  a  distinct  gift,  it  has  no  effect  upon 
4he  question  of  the  vesting  of  the  legacy." 

If  that  be  the  law,  it  is  very  difficultto  supjport  the  jleci^sion^  in  In  re 
Ashmore's  Trusts'.  What  the  Vice-Chancellor  said  was  thisl  [lTi9 
HoiiorTeadThe~|udgment] . 

I  agree  that  In  re  Ashmore's  Trusts  is  not  tO'  be  distinguished  from 
Pulsford  V.  Hunter  as  regards  the  terms  of  the  will,  but  I  do  not  find 
that  Lord  Loughborough  said  that  giving  the  whole  of  the  income  for 
maintenance  was  not  equivalent  to  giving  interest.  The  report  says 
that  "the  Lord  Chancellor  thought  that,  however  it  might  be  where 
interest  was  given,  yet  that  the  giving  maintenance  was  a  different  case, 
and  was  not  equivalent  to  giving  interest."  These  observations,  if  cor- 
rectly reported  (which  I  doubt),  seem  to  me  to  point  to  the  distinc-* 


Ch.  4)  VESTIXG  OF   LEGACIES  229 

tion  taken  by  Lord  Cottenham  between  a  gift  of  interest  to  be  applied 
in  maintenance  and  a  gift  of  maintenance  apart  from  interest ;  but  if 
this  be  not  the  true  meaning  of  them,  then  I  think  they  are  overruled 
by  what  Lord  Cottenham  said  and  by  the  current  of  modern  authori- 
ties. Indeed,  I  cannot  think  that  Watson  v.  Hayes  and  the  subse- 
quent cases  were  called  to  the  Vice-Chancellor's  attention ;  if  they  had, 
I  feel  sure  he  would  willingly  and  cheerfully  have  followed  them. 

One  of  these  cases  is  that  of  Re  Hart's  Trusts,  3  De  G.  &  J.  195, 
200,  202,  before  the  Appeal  Court.  There  the  testator  gave  real  estate 
to  a  devisee  for  life,  with  remainder  to  trustees  in  fee,  in  trust  to  sell 
and  out  of  the  proceeds  to  pay  a  legacy  of  £500  when  the  legatee 
should  attain  twenty-five,  and  he  directed  that  tlie  legacy  should  carry 
interest  from  the  death  of  the  tenant  for  life,  to  be  paid  towards  the 
legatee's  maintenance  until  she  attained  twenty-five.  The  legatee  sur- 
vived the  tenant  for  life,  but  died  under  twenty-five ;  and  it  was  held 
that  the  legacy  was  vested.  Lord  Justice  Knight  Bruce  says  that  the 
legatee,  "if  the  gift  in  question  had  been  a  legacy  out  of  the  testator's 
personal  estate  merely,  would,  in  my  opinion,  upon  principle  equally 
and  authority,  have  acquired  a  vested  right  to  the  £500  for  her  absolute 
use,  either  on  the  testator's  death  (subject  to  his  mother's  life  estate) 
or  on  the  death  of  his  mother.  For  by  the  will  interest  was  made  pay- 
able on  the  £500  from  the  time  of  the  death  of  the  testator's  mother, 
and  that  interest  was  directed  to  be  applied  wholly  for  the  benefit  of" 
the  legatee.  Lord  Justice  Turner  adverts  to  the  distinction  taken  by 
Lord  Cottenham  in  Watson  v.  Hayes,  and  says :  "In  the  present  case 
the  direction  is,  that  the  legacy  shall  carry  interest,  annexing,  as  it 
seems  to  me,  the  interest  to  the  legacy ;  and  I  do  not  see  how  we  could 
hold  this  legacy  not  to  be  vested,  unless  we  were  prepared  to  hold  that 
no  legacy  to  be  paid  when  a  legatee  attains  a  prescribed  age,  with  in- 
terest in  the  mean  time,  vests  until  the  legatee  has  attained  the  specific 
age,  a  conclusion  which  would  be  quite  at  variance  with  Hanson  v. 
Graham,  6  Ves.  239,  and  many  other  decided  cases."  Both  the  Lords 
Justices  take  the  same  view,  which  appears  to  me  to  be  quite  at  vari- 
ance with  what  was  decided  in  Pulsford  v.  Hunter. 

The  Vice-Chancellor,  in  the  case  of  In  re  Ashmore's  Trusts,  appears 
to  have  thrown  out  the  suggestion  that  there  might  be  a  distinction 
between  a  gift  of  a  separate  share  to  each  of  the  children  on  attaining 
twenty-one,  with  a  gift  of  the  income  in  the  mean  time  for  maintenance, 
and  a  gift  of  a  fund  to  each  of  the  children  on  attaining  twenty-one,  in 
equal  shares,  with  a  gift  of  interest  in  the  mean  time.  I  can  find  no 
such  distinction  taken  in  any  other  case,  and  it  seems  to  me  to  be  much 
too  fine  to  be  relied  on. 

There  still  remains  the  difficulty  that  the  gift  here  is  not  a  gift  of 
the  whole  income  absolutely  for  maintenance :  there  is  a  discretionary 
power  to  apply  the  whole  income,  or  so  much  as  the  trustees  may  think 
proper,  and  the  question  is,  whether  that  is  a  gift  of  the  whole  interest 


230  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

within  the  rule  as  laid  down  in  Watson  v.  Hayes  and  the  other  cases  I 
have  referred  to.  On  that  point  Harrison  v.  Grimwood,  12  Beav.  192, 
is  a  distinct  authority.  There  the  legacy  was  given  to  a  class,  followed 
by  a  direction,  during  the  minority  of  the  members  of  the  class,  to 
apply  the  interest,  "or  a  competent  portion  thereof,"  for  maintenance ; 
and  the  court  held  the  legacy  was  vested.  Lord  Langdale  does  not 
appear  to  have  considered  the  indication  of  intention  derived  from  the 
direction  to  pay  the  whole  income  as  affected  by  the  words  enabling 
the  trustees  to  apply  a  competent  portion  for  maintenance ;  he  treated 
it  as  a  gift  of  the  whole  income  followed  by  a  discretion  to  apply  less 
than  the  whole  income ;   and  that  appears  to  me  to  be  a  rational  view. 

Being  opposed  to  the  frittering  away  of  general  rules,  and  thinking 
that  stiL'h  rulesT'so  long  as  they  remam  rules, "ougEtld^e  followed, Hf 
holdThaFa^glfF^ontained  in  a  direction  to  pay  and  divide  amongst  a 
class^at  a  specihc  age,  folfowedTy  a  direction  to  apply  the  whole  in- 
come for  mamtenanceT^n  the  mean  time,  is  vested,  and  notihe  less  so 
because  "there  is  a  discretion  conferred  on  the  trustees  to  apply  less 
than  tHe  whole  incorhe  foFfhat^ifrpose.     '  ' 

f'also  think  Ihat^he  gift  over,  If  not  conclusive  on  the  question, 
certainly  aids  the  construction  adopted  by  me. 

The  answer  to  the  special  case  must  be  that  the  gift  is  valid.^"* 


In  re  PARKER. 
(Chancery  Division,  ISSO.    16  Ch.  Div.  44.) 

Martha  Elizabeth  Parker,  widow,  who  died  in  1863,  by  her  will, 
dated  in  1856,  gave  her  residuary  real  and  personal  estate  to  trustees  in 
trust  for  sale  and  conversion,  and  to  invest  the  proceeds  upon  the  stocks, 
funds,  and  securities  therein  mentioned,  and  to  stand  possessed  of 
the  said  stocks,  funds,  and  securities,  "upon  trust  to  pay  the  dividends, 
interest,  and  income  thereof,  or  such  parTthereof  as  my  said"  trustees 
f orlihe  time  being  shall  from  time  to  time_deem  expedient,  in  and  to- 
ward the  mamteiiarice  and_ediicationj3f  my  chHdren  untjljny  said  chil- 
dren shall  attamlherr  respective  ages  of  21  years;  and  from  andTm- 
mediately  after  their_attainin^  their  respective  ages  of  twenty-one 
years,  then  upon  trust  to  pay,  assign,  and  transfer  the  ^aid  stocks, 
funds,  and  secifnties  to  my  said  chiTdrenln  equal  shares,  if  more  than 
one,  and  if  but  one,  then  to  such  one  child ;  and  as  to  each  daughter's 
share,  whether  original  or  accruing,  upon  trust  to  settle  the  same,"  for 

15  Accord:  Eccles  v.  Birkett,  4  De  G.  &  S.  105;  In  re  Turney,  L.  R.  [1899] 
2  Ch.  739;  In  re  Williams.  L.  R.  [19071  1  Ch.  180.  But  see  oiuuion  of  North, 
J.,  in  In  re  Wintle,  L.  R.  [1890]  2  Ch.  711 ;  al-so  Wilson  v.  Knox,  L.  R.  13  Ir. 
349. 


Ch.  4)  VESTING  OF   LEGACIES  231 

the  benefit  of  herself  and  her  children.  And  the  testatrix  declared 
"that  it  shall  be  lawful  for  the  trustees  or  trustee  for  the  time  being  of 
this  my  wHTTo  assign,~Tfarisfer,  or  dispose  ofany  competent  part,  not" 
exceeding  onFTTaTTof  the  pfesijmptive  share  of  any  of  my  children  fo£ 
the  preferment  or  advancing  in  life,  or  preparing  for  business,  or  on  the 
marTiage'or  any  such  child  (being  daughters)  notwithstanding  their 
minorities." 

The  testatrix  had  three  children,  two  sons  and  a  daughter,  all  of 
whom  survived  her.  One  of  the  sons  died  in  1873  an  infant,  leaving 
his  brother  and  sister,  who  both  attained  twenty-one,  his  next  of  kin. 

The  daughter,  Mrs,  Barker,  married  in  1878  and  in  pursuance  of  the 
direction  in  the  will  a  settlement  was  executed  of  her  "moiety"  of 
her  mother's  residuary  estate. 

The  question  was  whether  Mrs.  Barker's  moiety  of  surplus  income 
of  the  infant's  one  third  remaining  unapplied  by  the  trustees  for  his 
maintenance  and  education  devolved  upon  her  as  one  of  his  next  of  kin, 
or  whether  it  was  bound  by  her  settlement;  in  other  words,  whether 
the  infant's  share  was  to  be  treated  as  "vested"  or  "contingent." 

Jessel,  M.  R.  It  appears  to  me  that  this  case  is  Hifferenf-  -Frnm 
that  of  FoTc  V.  Fox_  Law  Rep.  19  Eq.  286.  In  my  opinion,  when  a_ 
legacy  is  payable  at  a  certain  age,  but  is,  in  terms,  rnntincrent^  the  leg- 
acy becomes  vested  when  there  is  a  direction  to  p^y  thp  ini-prp-;t  jj^ 
the  mean  time  to  the  person  to  whom  the  legacy  is  given :  and  not  fhp 
less  so  when  there  is  superadded  a  direction  that  the  trustees  "shall 
pay  the  whole  or  "such  part  ot  the  interest  as  thev  shall  think  fit."  But 
I  am  not  aware  ol^  any  case  where,  the  gift  being  of  an  entire  fund  pay- 
able to  a  class~of  persons  equally  on  their  attaining  a  certain  age^  g. 
direction  to  apply  the  Income  of  the  whole  fund  in  the  mean  time  for 
their  mamtenance  has  been  held  to  create  a  vested  interest  in  a  member 
of  the  class  who  does  not  attain  that  age. 

I'he  woras  nere  are  piam.  Tlie  trust  is  of  residue :  "to  pay  the 
dividends,  interest,  or  income  thereof,  or  such  part  thereof  as  my  said 
trustees  for  the  time  being  shall  from  time  to  time  deem  expedient,  in 
or  towards  the  maintenance  and  education  of  my  children,  until  my  said 
children  shall  attain  their  respective  ages  of  twenty-one  years ;"  so 
tliat  there  is  nothing  here  giving  an  aliquot  share  of  income  to  any  indi- 
vidual child ;  the  direction  being  to  pay  the  income  of  the  whole  fund 
in_such_shares  as  the  trustees  shall  think  fit.  I  do  not  think  you  can 
infer  anything  from  the  direction  for  the  settlement  of  the  daughters' 
shares. 

Then  follows  a  gift  of  the  whole  fund  to  the  children  equally  on 
attaining  twenty-one.  I  should  have  felt  no  difficulty  if  it  had  not 
been  for  the  advancement  clause,  which  speaks  of  the  "presumptive 
share  of  any  of  my  children,"  but  I  do  not  think  that  clause  is  sufijcien"? 
to'alter  the  effect  of  the  preceding  part  of  the  will. 

That  being  so,  I  hold  that  the  infant  did  not  take  a  vested  interest 


>i 


232  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

in  his  one-third  share  of  the  residue,  and,  accordingly,  that  Mrs.  Bar- 
ker's moiety  of  the  unappHed  income  of  that  share  is  bound  by  the 
trusts  of  her  settlement.^^ 


DEWAR  V.  BROOKE. 
(Chancery  Division,  18S0.     14  Ch.  Div.  529.) 

Petition  in  an  administration  action. 

James  Dewar,  by  his  will,  dated  in  1866,  after  specific  and  pecuniary 
bequests,  gave  and  bequeathed  his  real  and  residuary  personal  estate 
to  trustees'  upon  trust  for  sale,  conversion,  and  investment,  and  then 
proceeded  as  follows:  "Subject  to  the  preceding  trusts  and  directions 
my  trustees  shall  stand  possessed  of  my  said  estate  in  trust  for_aUniv 
ch_iJdren_or  any  my  child  who  being  sons  or  a  son  shall  attain  twenty- 
five,  or  bemg~"daughteTs  or  a  daughter  sharTattainthe  age  of  twenty- 
is  Accord:  In  re  Grimsliaw's  Trusts,  L.  R.  11  Ch.  Div.  406;  In  re  Mervin 
[1891]  3  Ch.  197.  See  also  Andrews  v.  Lincoln,  95  Me.  541.  50  Atl.  898,  56  L. 
R.  A.  10.3 ;   Anderson  v.  :\Ienefee  (Tex.  Civ.  App.)  174  S.  W.  904. 

In  In  re  Griuishaw's  Trusts,  supra,  Hall,  V.  C,  said:  "With  reference  to 
the  decision  of  the  ^Master  of  the  Rolls  in  Fox  v.  Fox,  Law^  Rep.  19  E(i.  2S6, 
it  is  sufficient  for  pi-esent  purposes  to  say  that  the  frame  and  scheme  of  the 
disposition  in  that  will  were  different.  The  first  trust  there  was  of  the  cap- 
ital fund,  and  after  the  gift  of  that  in  the  first  instance  to  the  children  there 
followed  as  a  sort  of  annex  to  that  trust  these  words,  'applying  from  time  to 
time  the  income  of  the  presumptive  share  of  each  child  (if  more  tlian  one), 
or  the  income  of  the  whole  if  an  only  child,  and  so  much  thereof  respective- 
ly as  the  trustees  or  trustee  for  the  time  being  might  think  proper.'  I  can 
understand  in  such  a  case  where  the  trust  in  the  first  instance  was  a  trust  of 
the  capital  fund  with  a  superadded  provision  for  maintenance,  although  the 
words  were  'or  so  much  thereof  respectively  as  the  trustees  or  trustee  might 
think  proi>er,'  that  it  might  well  be  considered  that  in  substance  there  was  a 
trust  of  the  whole  income,  with  a  mere  authority  given  to  tlie  trustee  to  re- 
duce the  amount  to  be  applied  for  maintenance — that  there  was  in  substance 
a  trust  of  the  capital  fund  and  income  for  the  children  in  the  fii-st  Instance. 
That  distinguishes  that  case  from  the  present." 

In  Pearson  v.  Dolman,  L.  R.  3  Eq.  315,  at  321,  Sir  W.  Page  Wood,  V.  C, 
said:  "*  *  *  where  the  principal  is  given  at  a  distant  epoch,  and  the 
whole  income  is  given  in  the  meantime,  the  Court,  leaning  in  favour  of  vest- 
ing, has  said  that  the  whole  thing  is  given ;  but  if  there  occurs  an  interval 
or  gap,  which  separates  the  gift  of  the  income  from  the  principal,  it  is  not 
vested.  In  this  way  I  think  some,  though  perhaps  not  all,  of  the  cases  may 
be  reconciled  where  the  income  has  been  only  partially  given,  that  is  to  say, 
where  a  certain  amount  has  been  given  to  trustees  for  the  purpose  of  main- 
tenance and  not  the  whole  income  of  the  fund." 

So  if  the  income  is  not  given  to  the  legatee  during  the  period  before  the  dis- 
tribution of  the  principal,  but  is  itself  only  given  at  the  time  of  distribution 
and  along  with  the  principal,  the  gift  of  income  is  contingent,  like  the  gift  of 
the  principal,  and  furnishes  no  argument  for  the  vesting  of  the  gift  of  the 
principal.    Locke  v.  Lamb,  4  Eq.  372 ;   Russell  v.  Russell,  L.  R.  [1903]  1  Ir.  168. 

See  also  I^ake  v.  Robinson,  2  Mer.  3G3,  post,  p.  519. 

So  if  income  is  divided  equally  between  parents  and  in  case  of  the  death  of 
a  parent  before  the  period  of  distribution  the  income  formerly  payable  to  the 
parent  is  payable  to  the  parent's  children  ])or  stirpes  and  subse(]uently  the 
principal  is  to  be  divided  equally  among  all  the  children  of  the  parent  per 
capita,  the  gift  of  income  furnishes  no  argument  in  favor  of  vesting.  In  re 
Kountz's  Estate,  213  Pa.  399,  62  Atl.  1106. 


Ch.  4)  VESTING  OF   LEGACIES  233 

one  years  or  marry,  and  i£  more  than  one  in  equal  shares,  and  to  be 
divided  and  paid  on  the  youngest"  of  my  said  children  attammg  twenty- 
one  years,  and  tlie  sha£e_of_each  otmy  daughters  to  bef  or  Jier^sep- 
arateTuse  "with  remaindeFto  het^hildrejr^quahy,  aiid  iiide  f  aviltoF 
children  for  such  person  or  persons  as  she  sh^Ill)y~wair"gr'T:odtrii~ap- 
point\  Tempower  my  trustees  to  raise  any  part  not  exceeding  one-half 
ofihe  vested  or  presumj^tive  share  of  a  child  or  remoter  issue,  arid 
appTyThe  same  for  HTs  or  her  advancemeiit.  I  empower  my  said  trus- 
tees to  apply  the  whole  or  such  part  as  they  shall  think  fit  of  the'^aii- 
nuaf  income  to  which  any  child  or  remoter  issue  shall  be  entitled  m 
e  xpectancy  towards  the  maintenance  or  education  ofsuch  child." 

The  testator,  who  died  in  1867,  had  issue  two  children  only,  viz., 
the  Petitioner,  David  Douglas  Dewar,  who  was  born  on  the  17th  of 
December,  1856,  and  was  now  of  the  age  of  twenty-three  years,  and 
Jessie  Ethel  Dewar,  who  was  born  on  the  11th  of  September,  1858. 

During  the  infancy  of  Jessie  Ethel  Dewar  an  administration  action 
was  instituted  on  her  behalf  against  the  Petitioner  and  the  trustees,  in 
the  course  of  which  the  estate  of  the  testator  had  been  administered 
and  the  clear  residue  thereof  ascertained,  under  the  direction  of  the 
Court,  at  the  sum  of  £49,000. 

Jessie  Ethel  Dew^ar  attained  twenty-one  in  September,  1879,  and 
the  Petitioner,  being  about  to  marry,  and  being  desirous  of  making 
a  settlement  on  his  marriage,  now  presented  this  petition,  praying,  1. 
for  a  declaration  that  according  to  the  true  construction  of  the  will  of 
the  testator  his  residuary  estate  became  divisible  and  payable  on  his 
daughter,  the  youngest  child,  attaining  twenty-one,  in  equal  shares  be- 
tween her  and  the  Petitioner,  as  the  only  children  of  the  testator,  and 
that  their  respective  shares  might  be  ascertained  and  divided  and  paid 
accordingly ;  or  2,  in  the  alternative,  that  the  trustees  might  be  di- 
rected to  and  might  raise  one-half  part  of  the  Petitioner's  vested  or 
presumptive  share  of  the  testator's  residuary  estate,  and  apply  the  same 
for  his  advancement,  he  being  willing  and  thereby  offering  that  such 
one-half  part  should  be  settled  upon  certain  trusts  for  himself,-  his  in- 
tended wife,  and  the  issue  of  the  intended  marriage  therein  specified ; 
and  that  the  trustees  might  be  directed  to  pay  the  income  arising  from 
tlie  other  half  part  of  the  Petitioner's  vested  or  presumptive  share  to 
the  Petitioner  towards  his  maintenance. 

Hall,  V.  C.  The  trust  here  is  for  the  children  who  being  sons 
or  a  son  attain  twenty-five,  or  being  daughters  or  a  daughter  attain 
twenty-one  or  marry.  In  Fox  v.  Fox,  Law  Rep.  19  Eq.  286,  the  trust 
was  a  trust  for  sons  "as  and  when"  they  attain  twenty-five.  Here  a 
son  who  has  not  attained  twenty-five  is  not  one  of  the  cestuis  que  trust. 
The  maintenance  clause  is  not  inconsistent  with  a  son  under  twenty-five 
not  being  a  cestui  que  trust,  it  providing  for  the  maintenance  of  chil- 
dren entitled  to  income  in  expectancy.  In  Fox  v.  Fox  the  maintenance 
clause  did  not  describe  the  child  as  a  child  who  w^as  entitled  to  income 
in  expectancy,  but  was  in  these  terms :    "Applying  from  time  to  time 


L    i 


234  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

the  income  of  the  presumptive"  share  "of  each  child  (if  more  than 
one)  or  the  income"  of  the  whole  "if  an  only  child,  or  so  much  thereof 
respectively  as  the  trustees  for  the  time  being  might  think  proper  to 
and  for  his  and  her  maintenance  and  education,  until  such  share  or  en- 
tirety, as  the  case  might  be,  should  become  payable  as  aforesaid."  I 
think  I  should  be  departing  from  the  ordinary  meaning  of  the  words 
used  in  this  "will  it  1  were  t^Tiold  that  by  force  of  the  mamtenance 
claiiseP\vhich  is  what  is  mamly  relied  upon  f ortHe  Petitioner.^TTie  Pe- 
titioner  is  entitled  to  a  vested  interest.  With  regard  to  the  payment 
and^ivisiorT  being  dn-ected  at"  the  time  when  the  youngest  child  at- 
tains twenty-one  years,  that  direction  may,  and  I  think  does,  mean 
that  actual  division  and  payment  shall  not  take  place  until  the  youngest 
attains  that  age;  the  testator  says,  in  effect,  that  there  is  not  to  be 
payment  or  division  until  the  youngest  attains  twenty-one;  i.  e.,  you 
are  to  wait  for  that  event  before  you  make  payment  and  division,  and 
when  that  happens  you  are  to  make  payment  and  division ;  such  pay- 
ment and  division  being,  however,  necessarily  subject  to  postponement 
or  incomplete  in  reference  to  any  sons  who  may  be  under  twenty-five, 
and  as  to  daughters,  it  is  observable  that  when  the  youngest  child  at- 
tains twenty-one  there  might  be  included  in  the  division  a  daughter  who 
was  not  twenty-one  but  married.  As__to_Fox_v.  Fox,  LgAV  Rep.  19 
Eq.  286,  it  may  in  some  other  case  have  to  be  determined^  wjietHer  it 
is  in  conflict  with  the  decision  of  IHeTJord  Justice  James  in  the  case 
of  InTe  Ashmore's~Trusts7Xaw~Rep.  9  Eg.  99.  an^JTlf  sorwhic"h  de- 
cisiorrts  to"be  followed. ^^ 

IT  "It  is  important  to  distinguish  a  gift  to  a  contingent  class  and  a  gift  to 
a  class  upon  a  contingency ;  thus,  a  gift  to  children  who  attain  twenty-one. 
or  to  such  children  as  attain  twenty-one,  is  a  gift  to  a  contingent  class,  and 
will  only  vest  in  those  who  attain  twenty-one,  though  there  may  be  a  gift  of 
interest  or  other  circumstances,  which  in  a  gift  to  a  class  upon  a  contingency, 
as,  for  instance,  at  twenty-one,  might  have  the  effect  of  vesting  the  bequest." 
See  Gotch  v.  Foster,  5  Eq.  311. 

There  are  several  cases  where  no  special  argument  could  be  made  in  favor 
of  vesting,  such  as  the  payment  of  interest  or  income  in  the  meantime,  and 
where  the  gift  was  held  to  be  to  a  contingent  class:  Bull  v.  Prit chard,  1 
Russ.  213 ;  Leake  v.  Robinson,  2  Mer.  363  (post,  p.  519) ;  Stead  v.  Piatt,  18 
Beav.  50. 


Ch.  5)  GIFTS  OVER  235 


CHAPTER  V 

GIFTS  OVER  UPON  THE  DEATH  OF  A  PREVIOUS  TAKER 
SIMPLICITER,  OR  WITHOUT   CHILDREN,  OR  WITH- 
OUT ISSUE  SURVIVING  THE  FIRST  TAKER 


O'MAHONEY  v.  BURDETT. 

(House  of  Lords,  1874.    L,  R.  7  Eng,  &  Ir.  App.  Cas.  388.) 

The  Lord  Chancellor  [Lord  Cairns].  My  Lords,  Jane  Brooke, 
by  her  will,  dated  on  the  18th  of  September,  1840,  made  a  bequest  of 
a  sum  of  ilOOO  in  the  following  words :  "I  bequeath  tojny^^ister^Grace 
L'Estrange,  the  widow  of  Colonel  L'Estrange,  of  Moystown,  the  sum 
of  ilOOO  in  the  314  per  cent.  Irish  stock,  for  her  life,  and  after  her 
death  to  her  daughter,  Grace  L'Estrange.  If  my  said  niece  should  die 
unmarried  or  without  children,  the  ilOQO  rtTefe~wiII^to~reverrt(r my~ 
nephewTColonel  Henry  L'Estrange,  of  Moystown;"  and  thelestalfix 
appotnted  her  nephew,  John  Burdett,  her  residuary  legatee.  Colonel 
Henry  L'Estrange  died  before  the  testatrix,  and  so  did  Grace  L'Es- 
tranp^pjJTP^i-pnnnt  fnr  lifg^pf  the  legacy.  The  testatrix  herself  died  on 
the  29th  of  March,  1848.  Grace  L'Estrange,  the  niece  of  the  tes- 
tatrix, was  married  inl851  to  the  Appellant  O'Malioney,  and  died  in 
18/1,  and  there  was  no  child  of  the  marriage. 


The  Appellant,  under  these  circumstahcer,  contends  that  the  interest 
of  Grace  L/Estrange,  the  niece,  otherwise  O'Mahoney,  became,  upon 
her  surviving  both  her  own  mother  and  the  testatrix,  the  tenant  for 
life,fabsolute  and  indefeasible.  He  contends,  in  other  words,  tha^b}' 
the  expression^  "if  my  niece  should  die  unmarried  or^vyithout  children," 
is  to  be  understood  the  deatli  of  the^niece  unmarried  or  without  chij- 
dr'en,  not  at  any  time  whatsoever,  but  only  during  the  lifetime  of  the 
tenant  for  life.  Uf  this  opiniorTwas  the  then  Master  or~the  Rolls  in 
Ireland,  who  made  an  order  to  that  effect  on  the  15th  of  July,  1859. 
But  this  o_rder  was  reversed  by  the  Judgesjn  the  Court  of  AppeaHn 
Chancery  in  Ireland^  who  by  an  order  dated  the  17th  of  November, 
1859,  declared  that  the  bequest  of  ilOOO  stock  to  Grace  O'Mahoney 
was  defeasible  in  the  event  of  her  dying  unmarried  or  without  chil- 
dren, at  any  time.  Lender  this  order  the  Respondent,  as  the  representa- 
tive of  the  residuary  legatee,  now  claims  to  be  entitled  to  the  legacy. 

In  tlie  absence  of  any  authority  to  the  contrary,  I  should  entertain 
no  doubt  that  the  decision  of  the  Court  oT  Appeal  in  Chancery  iiTTre- 
land  was  in  accordance  with  the  true  interpretation  of  tlie^vijl.  A 
bequest  to  A.,  and  if  she  shall  die  unmarried  or  without  children  to 
B.,  is,  according  to  the  ordinary  and  literal  meaning  of  the  words,  an 


236  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

absolute  gift  to  A.,  defeasible  by  an  executory  gift  over,  in  the  event 
of  A.  dying,  at  any  time,  under  the  circumstances  indicated,  namely, 
unmarried  or  without  children.  And  in  like  manner,  a  bequest  to  X. 
for  life,  with  remainder  to  A.,  and  if  A.  die  unmarried  or  without 
children  to  B.,  is,  according  to  the  ordinary  and  literal  meaning  of  the 
words,  an  executory  gift  over,  defeating  the  absolute  interest  of  A. 
in  the  event  of  A.  dying,  at  any  time  unmarried  or  without  children. 

In  this  particular  will  any  light  that  is  to  be  obtained  from  the  con- 
text isliot  opposedto,  but  supports,  the  naturarmeaiTmg~oT  the  words. 
The~Tlirection  that  it  the  niece  should  die  unmarried  or  without  chil- 
dren  the  ilOOO  is  "to  revert  to  my  nephew  Colonel  Henry  L'Estrange," 
appears  to  indicate  that  the  legacy  wasTo'coime  bacTc^  or  come  away, 
from  the  niece  after  sh^  hnd  hsd  the  possession  ^nd  enjoyment  of  it, 
rather  than  to  imply  that  the  only  state  of  circumstances  under  which 
Colonel  Henry  L'Estrange  could  take,  would  be  a  state  of  circum- 
stances under  which  the  niece  would  have  had  no  enjoyment  of  the 
legacy  at  all.  In  other  words,  the  benefit  intended  for  the  nephew  ap- 
pears to  me  to  be  introduced  through  the  medium  of  an  executory  limi- 
tation over  after  enjoyment  by  a  previous  taker,  and  not  as  an  alterna- 
tive gift  to  take  efifect,  if  at  all,  before  the  period  of  enjoyment  com- 
mences. 

But  it  is  said  that  there  is  now  established  an  absolute  rule  of  law, 
or  rule  of  construction,  that  where  there  is"  a  gifFToTTife,  foUowgdHby 
a  glit  over  ot  the'capit^^with  a  proviso  that  ijthe  second  takei^hall 
dieUnder  age,  or  unmarried,  or  without  children,  there  the  death  of 
the  second  taker,  thus  deicribed,  is  to  be  taken  to  refer,  liot  to  death 
under  those  circumstances  at  any  time,  but  to  death  under  those  cir- 
cumsTaiices  betore  the  tenanLJor  life ;  and  the  case  of  Edwards  v.  Ed- 
war  diirFBea^r^ST^TnTjTTch.)  324],  decided  by  the  late  Master  of 
the  Rolls,  is  referred  to  as  the  authority  for  this  proposition. 

It  is  clear  that  the  case  of  Edwards  v,  Edwards  [15  Beav.  357,  21 
L.  J.  (Ch.)  324] ,  decided  in  the  year  1852,  could  not  establish  any  new 
rule  of  construction  applicable  to  cases  of  this  kind;  and  it  is  equally 
clear,  looking  at  the  report  of  the  case,  that  the  Master  of  the  Rolls 
did  not  intend  to  establish  any  new  rule  of  construction.  His  Honor 
endeavours  to  collect  and  classify  the  various  decisions  which  have 
taken  place  as  to  construction  of  gifts  over  in  the  case  of  death,  or  in 
the  case  of  death  under  particular  circumstances ;  and  the  question  is, 
whether  that  part  of  his  judgment  which  deals  with  gifts,  like  the  one 
before  your  Lordships,  is  a  just  expression  of  the  principles  to  be  de- 
duced from  decisions  before  that  time. 

As  regards  the  question  actually  decided  in  the  case  of  Edwards  v. 
Edwards  [15  Beav.  357,  21  L.  J.  Ch.  324],  with  reference  to  the  will 
then  before  the  Court,  there  were  expressions  in  that  will  which  may 
well  have  warranted  the  conclusion  at  which  the  Court  arrived.  The 
testator  devised  freeholds  and  leaseholds  to  his  wife  for  life  or  widow- 
hood.   Then  part  of  the  property  he  gave  to  his  eldest  son  "for  him 


Ch.  5)  GIFTS  OVER  237 

and  his  heirs  to  possess  immediately  after  his  mother's  death  or  mar- 
riage." He  made  similar  devises  and  bequests  to  another  son  and  to 
a  daughter;  and  he  continued:  "If  my  wife  shall  remain  my  widow 
my  trustees  shall  assign  and  transfer  to  each  of  my  children  their 
shares,  immediately  after  her  death,  and  as  soon  as  they  arrive  at  twen- 
ty-one years  of  age.  *  *  *  Farther,  if  one  of  my  children  shall 
die  leaving  no  children,  his  or  her  share  shall  be  equally  divided  be- 
tween the  other  two."  The  direction  here  for  an  assignment  and  trans- 
fer, coupled  with  immediate  and  absolute  possession  upon  the  death  of 
the  tenant  for  life,  may  well  have  justified  the  decision  confining  the 
contingency,  of  death  without  children,  to  the  life  of  the  tenant  for 
life.^ 

The  Master  of  the  Rolls,  however,  in  his  judgment,  divides  the  cases 
on  this  subject  into  four  classes.  Upon  the  first  three  classes  it  is  not 
necessary  to  do  more  than  to  point  out  that  the  conclusions  drawn  from 
them  by  His  Honour  do  not  appear  to  me  in  any  way  to  lead  up  to 
the  rule  which  he  deduces  from  the  fourth  class  of  cases  which  he 
mentions.  The  first  class  of  cases  is  that  where  there  is  a  gift  to  A., 
and  if  he  shall  die  to  B.  If  in  such  a  case  the  words  are  to  be  rea^~Tit- 
erally,  j'ou  have,  in  the  first  place,  the  absolute  gift,  and  then  a  gift 
over  in  the  event  of  death ;  an  event  not  contingent  but  certain,  and  in 
order  to  avoid  the  repugnancy  of  an  absolute  giving  and  an  absolute 
taking  away,  the  Court  is  forced  to  read  the  words  "in  case  of  death" 
as  meanitioi^in  case  of  death  before  tlie'mterest  vests7  " 


'^ith  regard  to  the  second  class  of  cases,  namel)'',  gifts  to  A.  for       -2- 

1  "If  the  fund  is  vested  in  trustees,  who  are  directed  to  distribute  it  at  a 
certain  time,  so  that  the  trusts  then  determine,  and  the  legatees,  who  are  to 
take  upon  the  deatli  of  prior  legatees  without  issue,  are  contemplated  as  tak- 
ing through  the  medium  of  the  same  trustees,  there  is  prima  facie  reason  for 
restricting  the  death  without  issue  to  death  without  issue  before  the  time  of 
distribution.  Galland  v.  Leonard,  1  Sw.  161 ;  Wheable  v.  Withers,  IG  Sim. 
505 ;  Edwards  v.  Edwards,  15  B.  357 ;  Beckton  v.  Barton,  27  B.  99 ;  Dean  v. 
Handley,  2  H.  &  M.  6.115.  See  Smith  v.  Colman,  25  B.  217 ;  In  re  Hay wai'd, 
Creery  v.  Lingwood,  19  Ch.  D.  470 ;  In  re  Luddy,  Peard  v.  Morton,  25  Ch.  D. 
394;  Lewin  v.  Killey,  13  App,  C.  783,  P.  C."  Theobald  on  Wills  (7th  Ed.)  p. 
662. 

"\\Tien  there  is  a  direction  that  a  legatee  is  to  have  the  absolute  control  of 
her  legacy  at  a  particular  time,  a  subsequent  gift  over  will  be  limited  to  take 
effect  before  that  time.  Clark  v.  Henry,  11  Eq.  222,  6  Ch.  5SS."  Theobald  on 
W'ills  (7th  Ed.)  p.  663. 

2  "If  there  is  an  immediate  gift  to  A.  and  a  gift  over  in  case  of  his  death, 
or  any  similar  expression  implying  the  death  to  be  a  contingent  event,  the 
gift  over  will  take  effect  onlv  in  the  event  of  A.'s  death  before  the  testator. 
Lord  Bindon  v.  Earl  of  Suffolk,  1  P.  W,  96;  Turner  v.  Moor,  6  Ves.  556; 
Cambridge  v.  Rous,  8  Ves.  12 ;  Crigan  v.  Baines,  7  Sim.  40 ;  Taylor  v.  Stain- 
ton,  2  Jur.  N.  S.  634;  Ingham  v.  Ingham,  I.  R.  11  p:q.  101;  In  re  Neary's  Es- 
tate, 7  L.  R.  Ir.  311 ;  Elliott  v.  Smith,  22  Ch.  D.  236 ;  In  re  Bourke's  Trusts, 
27  L.  R.  Ir.  573.  See  Watson  v.  Watson,  7  P.  D.  10."  Theobald  on  Wills  (7th 
Ed.)  p.  658. 

"But,  as  a  rule,  when  there  is  a  gift  to  A.  indefinitely,  followed  by  a  gift 
at  his  decease,  A.  WlirtirKe"  only  a  lite  interesT;    Constable  v.  Bull,  3  De 'G7~^ 
S.  411;     Waters  v.   WatefsT'lZS' L.  J.  Ch.  624;    Adams'  Trust,  14  W.  R.  18 , 
Joslin  V.  Hammond,  3  M.  &  K.  110 ;    Reid  v.  Reid,  25  B,  469 ;   Bibbens  v.  Pot- 


238  CONSTRUCTION  OF  LiJiiTATiONS  (Part  2 

life,'  and  If  he  shall  die  without  children,  over,  the  Master  of  the  Rolls 
expresses  himself  thus:  "In  the  second  of  the  supposed  cases  there  is 
a  manifest  distinction.  There  the  event  spoken  of  on  which  the  leg- 
acy is  to  go  over  is  not  a  certain  but  a  contingent  event.  It  is  not  in 
case  of  the  death  of  A.,  but  in  case  of  his  death  without  children ;  and 
here  it  would  be  importing  a  meaning  and  adding  words  to  the  will, 
if  it  were  to  be  construed  to  import  as  a  condition  which  was  to  en- 
title B.  to  take,  that  the  death  of  A.  without  children  must  happen  be- 
fore some  particular  period.  In  these  cases,  therefore,  it  has  always 
been  held,  that  if_at  any_time,  whejiherjiefore  or  after  the  death  ^f 
the  testator,  A.  should 'die  withoiitjeavino;_a-jciiildjhe^y^^ 
eflect,  "and__the  legacy~vests  IvT'S'.  This  is  established  by  the  case  of 
Farthing  vT^AIlen  [2  Madd.  310],  mentioned  in  Haddocks,  but  re- 
ported only  in  Jarman  on  Wills."  [Vol.  2,  p.  688.]  My  Lords,  I 
agree  with  these  observations,  but  I  must  observe  in  passing  that  I 
am  unable  to  understand  how  it  is  not,  to  use  the  expression  of  the 
Master  of  the  Rolls,  "importing  a  meaning  and  adding  words  to  the 
will,"  if  you  construe  it  to  imply,  as  a  condition  which  is  to  entitle  B. 
to  take,  that  the  death  of  A.  without  children  must  happen  before  some 
particular  period,  any  more  where  tliere  is  not.  than  where  there  is, 
a  previous  life  estate.  I  may  pass  over  the  third  class  of  cases  as  not 
bearing  upon  the  question  now  before  your  Lordships.* 

ter,  10  Ch.  D.  733 ;    Re  Houghton,  Houghton  v.  Brown,  50  L.  T.  529 ;   Re  Rus- 
sell. 52  L.  T,  559."    Theobald  on  Wills  (7th  Ed.)  pp.  658.  659. 

"In^the  ease  of  realty,  a  devise  to  A.  simply  in  a  will  before  the  Wills  Act, 
and  in~case  of  pis  death  over,  would  pernaps  be  construed  as  to~?C"^^]life, 
and  atter  his  deatn  over.  Bowen  v.  Scowcroft,  2  i.  &  C.  tjx.  640.  See,  how- 
ever, Wright  V.  Stephens,  4  B.  &  Aid.  574.  On  the  other  hand,  if  the  devise 
gives  A.  the  fee,  a  gift  over,  in  case  of  A.'s  deattr;~^tll~be  hetdJELrjefer  to  Msr 
d?nTK  before  the  leislalor; — BogersrTT'Hogers,  7  W.  R.  541."  TheobaIdr"on~ 
WmiT7th  EdT^TBBO: 

3  In  Edwards  v.  Edwards,  15  Beav.  357,  at  361,  the  Master  of  the  Rolls  said: 
'•The  second  case  is  that  of3_gift_to  A.,  and,  if  heshall  diejvvlthout_l§OJ:ing 
a  child,  then  to  B."  This  Includes  the  case  where  "the  first  taker  is  ^Tven  an 
absolute  interest: — FifeTv.  Alleur22S  111.  b07,  Sl  JSI.  E.  110b;  Carpenter  v. 
SaagrnmrcrTIoan^  Trust  Co.,  229  111.  486,  82  N.  E.  418;  People  v.  City  of 
Peoria,  229  111.  225,  82  N.  E.  225 ;  Humane  Society  v.  McMurtrie,  229  111.  519, 
82  N.  E.  319. 

4  In  Edwards  v,  Edwards,  15  Beav.  357,  at  363,  the  Master  of  the  Rolls 
said :  "In  the  third  class  of  cases,  where  a  previoiis-Iiffe=estate  is  given,  the 
same  rule  which  applies  to  the^rst  cra^gJaJTcaseilaoidisg.  equaTly,  though  the 
ji.ppHrTrmTfrTvF  it  tiy??s3  different  tlinp  In  the  first  case,  the  rule  is,  if  A.  die 
before  the"  T^ertb^T^f  possession  or  payment,  i.  e.  before  the  death  of  the  tes- 
tator, the  legacy  goes  to  B.  In  the  case  I  am  now  considering,  the  rule  is 
the  same,  namely,  if  A.  die  before  the  period  of  possession  or  payment,  i.  e. 
before  the  death  of  the  tenant  for  life  of  the  legacy,  the  legacy  goes  to  B. 
This  is  the  case  of  Hervey  v.  McLaughlin  [1  Price,  2G4],  cited  with  approba- 
tion by  V.  C.  Wigram  in  Salisbury  v.  I'etty  [3  Hare,  92].  And  it  may  further 
be  observed,  that  the  propriety  of  giving  effect  to  the  testator's  words,  mak- 
ing death  a  contingent  event,  by  referring  that  event  to  the  period  when  the 
legacy  is  vested  in  possession,  rather  than  to  the  death  of  the  testator,  where 
these  periods  are  not  identical,  was  the  ground  on  which  the  House  of  Lords 
reversed  the  decision  of  Lord  Cowper,  in  Lord  Kindon  v.  The  Earl  of  Suf- 
folk [1  P.  Wms.  96],  although  the  principle  of  that  decision  was  then  rec- 
ognized, and  has  always  been  since  maintained." 


Ch.  5)  GIFTS  OVER  239 

The  foiirth  class  of  cases  mentioned  by  the  Master  of  the  Rolls  ^ 
consists  o?  those  where  a  life^state  is  given,  and  the  property  is  then 
given  to  A.  with_a  drrectIonjhatjfJie__shall  die  leaving  no  child  (orjm- 
marrieSlQX_iin3er  twenty^one).  over.  As  to  these  cases  the  Master  of 
the  Rolls  observes,  that  the  words  referring  to  death  without  leaving 
a  child,  &c.,  may  be  applied  to  death  at  any  time  whenever  it  may  oc- 
cur; "nor,"  he  continues,  "if  it  were  res  Integra  would  it  be  easy,  in 
the  absence  of  any  indication  of  intention  to  be  collected  from  the  rest 

of  the  will,  to  determine  what  construction  ought  to  prevail."     The     /^^^  JX^      H .  -'^-^ 
Master_of^the  Rolls,  however,  proceeds  to  say  that  he  considers  it  ^^set-_     ^c^-t'^C.^     /  C^ 
tied,  both  bvj^rinciple  and  authority,  that,  in  the^  absence  of  any  words      ^v^-^J--^  d  "5  o,^^ 
indicating' a  contrary~Tntention.  the~rule  isTlhat  the  wordsindicating       /,  -vv/r 

death  without  leavmg  a  child."  must  be  construed  to  refe?To  the  oc-      /.        ,  i  rf* 

currmg  of  that  event  betore  the  period  of  distribution,  which  he  takes    /^^'*-^^*^   "^  A-tvL 
as  synonymous"lvith  the  d_eatli  nt  thpjhenTmrfnr  li^      '  O'-JZ^ 

The  principle  to  which  the  Master  of  the  Rolls  refers,  he  states  to 
be,  the  desire  of  the  Court  to  avoid  a  construction  so  inconvenient  as 
one  which  must  suspend  the  absolute  vesting  of  the  gift  during  the 
whole  lifetime  of  the  legatee,  a  principle  which,  he  says,  influenced 
Lord  Brougham  in  his  decision  of  the  case  of  Home  v.  Pillans  [2  My. 
&  K.  15].  With  regard  to  the  case  of  Home  v.  Pillans,  it  will  be 
found,  when  I  examine  it,  to  have  no  application  whatever  to  bequests 
of  the  kind  which  we  are  now  considering,  and  I  am  not  aware  of  any 
principle  such  as  the  Master  of  the  Rolls  refers  to,  being  applied  to 
control  the  natural  meaning  of  the  terms  of  a  bequest.  In  the  second 
class  of  cases  referred  to  by  the  Master  of  the  Rolls,  the  gift  continues 
defeasible  during  the  whole  life  of  the  legatee;  and  in  cases  like  that 
before  3^our  Lordships  it  would,  even  according  to  the  construction  of 
the  Appellant,  continue  defeasible  during  the  whole  of  the  life  of  the 
legatee,  supposing  the  legatee  to  be  outlived  by  the  tenant  for  life. 

The  Master  of  the  Rolls,  however,  refers  to  decided  authorities. 
These  authorities  are  Da  Costa  v.  Keir  [3  Russ.  360],  Galland  v.  Leon- 
ard [1  Sw.  161],  and  Home  v.  Pillans  [2  My.  &  K.  15].  In  Da  Costa 
V.  Keir  [3  Russ.  360]  the  testator  gave  the  residue  of  his  estate  to  his 
widow  for  her  life,  and  after  her  decease  to  a  person  whom  I  shall  de- 
note as  C,  to  and  for  her  own  use  and  benefit,  to  be  at  her  own  dis- 
posal, but  if  C.  should  happen  to  die,  leaving  any  children  living  at 
her  decease,  then  to  such  children ;  but  if  C.  should  happen  to  die  with- 
out any  child  or  children  living  at  her  decease,  then  to  D.  and  E. 
equally ;  but  if  either  should  die  before  they  became  entitled  to  re- 
ceive the  residue  of  his  estate,  then  the  whole  to  the  survivors ;  but  if 
both  should  happen  to  die  in  the  lifetime  of  the  widow,  then  to  his 
widow  absolutely.  There  were,  in  this  will,  various  circumstances 
pointing  out  the  death  of  the  widow  as  the  period  at  which  all  the  in- 
terests were  to  become  indefeasible.  In  the  first  place  the  principal  of 
the  residue  was  given  to  C.  "from  and  after  the  death  of  the  widow, 
to  and  for  her  own  use  and  benefit,  to  be  at  her  own  disposal ;"  a  pro- 


240  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

vision  which  appeared  to  negative  any  continuing  defeasibility.  In  the 
next  place,  the  gift  over  from  C.  was  framed,  either  in  case  she  should 
die  leaving  children,  or  in  case  she  should  die  not  leaving  children. 
And  inasmuch  as  she  must  of  necessity  die  either  leaving  or  not  leaving 
children,  the  case  was  the  same  as  those  where  the  gift  over  is  in  the 
event  of  death  simpliciter.  Farther,  the  ultimate  gift  was,  in  case 
D.  and  E.  should  both  happen  to  die  in  the  lifetime  of  the  widow,  a 
provision  which  seemed  to  imply  that  the  previous  gifts  over  were 
meant  to  be  in  case  of  death  in  the  lifetime  of  the  widow.  It  was  upon 
these  particular  expressions,  peculiar  to  this  particular  will,  and  not 
upon  any  general  rule  of  construction,  that  the  Master  of  the  Rolls 
arrived  at  a  decision,  which,  as  it  appears  to  me,  was  in  that  case  en- 
tirely justified  by  the  words  of  the  will. 

With  regard  to  the  case  of  Galland  v.  Leonard  [1  Sw.  161]  it  is 
unnecessary  to  delay  your  Lordships  by  going  through  a  narrative  of 
the  will.  It  is  singular  that  there  also,  as  in  Da  Costa  v.  Keir  [3  Russ. 
360] ,  there  was  a  gift  over  in  the  double  event  of  either  leaving  or  not 
leaving  children,  and  there  was  a  provision  that  the  children  of  a  daugh- 
ter should  be  entitled  to  the  same  share  as  their  mother  would  have 
been  entitled  to  "if  then  living,"  and  it  was  upon  these  expressions, 
and  on  the  general  construction  of  the  particular  will,  that  the  Master 
of  the  Rolls  held  that  the  daughters  surviving  the  tenant  for  life  took 
indefeasible  interests. 

The  case  of  Home  v.  Pillans  [2  My.  &  K.  15]  was  a  case  of  an  en- 
tirely different  kind.  There  was  there  a  bequest  to  the  testator's  nieces 
when  and  if  they  should  attain  twenty-one ;  and,  in  case  of  the  death 
of  either  niece  leaving  children,  or  a  child,  the  testator  gave  the  share 
of  the  niece  so  dying  to  her  children  or  child.  This  was  not  the  case 
of  an  absolute  gift,  with  a  gift  over  in  a  certain  event.  There  was 
no  gift  over,  and  there  was  no  gift  at  all  until  a  niece  attained  twenty- 
one,  and  the  child  of  a  niece  marrying  and  dying  before  twenty-one 
would  have  been  wholly  unprovided  for  if  the  Court  had  not  held  that 
the  words  "in  case  of  the  death  of  my  said  nieces  or  either  of  them, 
leaving  children  or  a  child,"  pointed  to  a  death  under  twenty-one. 

I  am  unable,  therefore,  to  find  in  the  authorities  referred  to  bv  the 
Master  of  the  Rolls  the  general  rule  of  construction  which  he  deduces 
from  them. 

I  may  add  that  there  is  a  well-known  class  of  cases  referred  to  by 
Mr.  Fearne  in  his  book  on  Contingent  Remainders  [9th  Ed.  p.  471], 
and  by  other  writers,  where,  with  respect  to  executory  devises  of 
terms  for  years  or  other  personal  estates  the  Court  of  Chancery  has 
been  accustomed  to  lay  hold  of  any  words  in  the  will  to  tie  up  the 
generality  of  the  expression  "dying  without  issue,"  and  confine  it  to 
dying  without  issue  living  at  the  time  of  the  person's  decease.  In  sev- 
eral of  these  cases  there  has  been  a  prior  life  estate,  as  in  the  case  of 
Atkinson  v.  Hutchinson  [3  P.  Wms.  258],  but  in  none  of  them  was  it 
ever  suggested  that  the  words  "dying  without  issue"  or  without  leav- 


Ch.  5)  GIFTS  OVER  241 

ing  issue,  could  be  construed  as  pointing  to  a  death  before  the  tenant 
for  Hfe. 

My  Lords,  I  need  not  refer  in  detail  to  cases  decided  since  the  case 
of  Edwards  v.  Edwards  [15  Beav.  357,  21  L.  J.  Ch.  324],  some  of 
them  have  professed  simply  to  follow  Edwards  v.  Edwards  [15  Beav. 
357,  21  L.  J.  Ch.  324],  and  among  them  is  the  case  of  In  re  Heath- 
cote's  Trust  [Law  Rep.  9  Ch.  Ap.  45 ;  see  the  case  Ingram  v.  Soutten, 
post]  now  under  appeal  before,  and  about  to  be  decided  by,  your 
Lordships,  Another  is  the  case  of  Smith  v.  Spencer  [6  Deg.,  M.  & 
G.  631],  before  Lord  Cranworth,  a  case  in  which,  if  it  is  analogous 
to  the  present,  the  decision  of  Edwards  v.  Edwards  [15  Beav.  357, 
21  L.  J.  Ch.  324]  was  certainly  not  followed. 

I  am  unable  to  find,  in  any  rgt^p  prjnr  tr^  Edw^T'^'^L.y^JP^j^^'''^^''  [15 
Beav.  357,  21  L.  J.  Ch.  324],  any  authority  thatjhejvyords  introducing 
a  gift  over  in  case  n f  f ji fwjpn fTpTm m a rned^nrlv^hh nut  Jl!iJld.rgn_of  a 
previous  taker  d6~not  indicate,  accordingi  lQ_their  natural  and  prosper 
meantng.  deatlT  unmarried_0£  without  children  occurring-Jit  any  time, 
or  thafTlns~ofdinary^nd  literal  meaning^js^tp  be  departed  Jrom  other- 
wise thaFln~consHJueTi(:e^of~ajCont^^ 
ing  necessafy"oi^ prbperT 

r  ought  to  observeTTesTlt  should  appear  to  have  been  overlooked, 
that  at  one  period  of  the  argument  doubts  were  expressed  whether  un- 
der the  present  will  the  nephew,  Colonel  L'Estrange,  having  died  in 
the  life  of  the  testatrix,  the  gift  over  from  Grace  L'Estrange  could 
take  effect.  This  point  was  not  raised  in  the  Court  below,  and  I  am 
satisfied  that  the  gift  to  Colonel  L'Estrange  having  failed  t)y  lapse, 
th'e  residuary  legatee  is  entitled  to  take  all  that  Colonel  L'Estrange,"  if 
living  at  the  death  of  the  testatrix,  could  have  takem 

On  tlie  whole,  I  am  of  opinion  that  the  present  appeal  should  be 
dismissed  with  costs.  My  Lords,  I  say  with  costs,  more  particularly, 
because  I  observe  that  out  of  this  legacy,  not  a  large  one  at  the  best, 
the  costs  of  litigation  which  came  on  two  occasions  before  the  Court 
below  have  already  been  paid ;  and  if  farther  costs  were  to  be  paid 
out  of  the  legacy,  it  would  in  effect  be  making  the  owner  of  the  legacy 
pay  the  costs  of  both  sides  throughout  the  litigation.^     *     *     * 

Lord  SelbornK.  [After  dealing  with  the  principal  point  of  the 
case  and  agreeing  in  the  conclusions  expressed  by  the  Lord  Chancellor, 
continued  as  follows:]    This  disposes  of  the  appeal  now  before  us,  un- 

6  Opinion  of  Lord  Ilatherley  omitted. 

Note  on  the  Meaning  ok  '"Without  Children." — "AYithont  any  child" 
means  primarilv  without  children  surviving  at  the  death  of  the  first  taker. 
Jeffreys  v.  Conner,  28  Beav.  328 ;  In  re  Booth ;  Pickard  v.  Booth,  L,  R.  [1900] 
1  Ch.  7GS. 

Where  there  is  a  gift  to  A.  absolutely,  and  a  gift  over  on  his  death  with- 
out leaving  children,  the  word  "leaying''  will  cause  the  gift  over  to  take  ef- 
fect if  A.  dies  leaving  no  children  surviving  him  at  his  death.  See  Theobald 
on  Wills  (7th  Ed.)  pp.  706,  707 ;  Smith  v.  Kimbell,  153  III.  368,  377,  38  N.  E. 
1029. 

4  Kales  Prop. — 16 


242  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

less  it  can  be  held  that  the  gift  to  Grace  L'Estrange,  the  niece,  being 
absolute  in  form,  never  became  subject  to  the  divesting  clause,  be- 
cause the  contingent  gift  by  the  clause  was  to  a  person  who  died  in 
the  testatrix's  lifetime.  When  the  appeal  was  first  opened,  I  doubted 
whether,  under  these  circumstances,  the  effect  of  the  divesting  clause 
was  not  wholly  evacuated,  in  the  same  way  as  if  there  had  been  a  blank 
in  the  will  for  the  name  of  the  substituted  legatee.  But  the  result  of 
the  preliminary  argument  on  that  point,  and  of  the  authority  cited  by 
the  Respondent,  has  been  to  satisfy  me  that  the  lapse  of  a  contingent 
gift,  by  way  of  substitution,  to  a  person  named  who  might  have  sur- 
vived the  testatrix,  operates  (when  the  contingency  has  happened  on 
which  the  gift  to  the  person  was  made  to  depend)  for  the  benefit  of 
the  residuar}^  legatee,  or  next  of  kin,  in  the  same  way  as  if  the  gift 
had  been  originally  made  to  the  same  person,  free  from  any  contin- 
gency. 

Order  appealed  from  affirmed;   and  appeal  dismissed,  with  costs. 


TREHARNE  v.  LAYTON. 
(In  the  Exchequer  Chamber,  1875.    L.  R.  10  Q.  B.  459.)  « 

Appeal  from  the  decision  of  the  Court  of  Queen's  Bench  discharg- 
ing a  rule  to  enter  a  verdict  for  the  defendants. 

The  action  was  in  ejectment  to  recover  possession  of  tenements  sit- 
uate at  Clay  Hill,  in  the  county  of  Hertford. 

The  defendants  as  landlords  defended  for  the  whole. 

The  cause  was  tried  before  Kelly,  C.  B.,  at  Hertford  spring  assizes, 
1874. 

Jane  Clifford,  formerly  of  Clay  Hill,  made  and  executed  her  will 
on  the  19th  of  June,  1863,  as  follows: 

"I,  Jane  Clifford,  of  Cedar  Cottage,  Clay  Hill,  *  *  *  do  make 
and  declare  this  to  be  my  will  and  testament  in  the  manner  following: 
I  order  that  all  my  just  debts,  funeral  expenses,  and  charges  of  prov- 
ing this  my  will,  be  in  the  first  place  fully  paid  and  satisfied,  and  after 
payment  thereof  all  the  rest,  residue,  and  remainder  of  my  goods,  chat- 
tels, debts,  ready  money,  effects,  and  other  my  estate  whatsoever  and 
wheresoever  both  real  and  personal,  I  give  and  bequeath  the  same,  and 
every  part  and  parcel  thereof,  unto  my  granddaughter  Martha  Hud- 
son, for  her  sole  use  during  her  lifetime,  and  after  her  death  to  her 
children  in  equal  parts.  And  I  do  hereby  order  my  granddaughter 
Martha  Hudson  to  allow  my  brother  Robert  Robbins  everything  neces- 
sary during  his  lifetime  in  her  own  house,  or  my  granddaughter  Martha 
Hudson  to  allow  my  said  brother  fifteen  shillings  per  week  so  long  as 
he  shall  live.    In  case  my  granddaughter  Martha  dies  leaving  no  issue, 

6  Only  the  opinion  of  Cleasby.  B.,  is  given.  The  concurring  opinions  of 
Grove  and  Denman,  JJ.,  and  Pollock  and  Amphlett,  BB.,  are  omitted. 


Ch.  5)  GIFTS  OVER  243 

the  whole  of  the  property  g-oes  to  the  next  of  kin,_vvith  the  understand- 
ing'TEarTEey~~Ehe~riext"T7f'knr^~atl6w~i^^  Robert  Robbins  fif- 

teen shilHngs  per  week  during  his  life." 

Martha  Hudson  married  the  plaintiff  on  the  27th  of  July,  1864. 

The  testatrix  died  on  the  29th  of  January,  1867. 

In  April,  1868,  a  male  child  was  born  to  the  plaintiff  and  Martha 
Treharne"  (tormerly  Hudson),  andjived  lor~a^evir hours  only.  No 
other  "child  oTTlTFmarrTage'was'Bonraiive^ 

Martha  Treharne  died  on  the  6th  of  June,  1872. 

The  property  sought  to  be  recovered  was  freehold  property  of  Jane 
Clifford  and  passed  by  her  will. 

The  verdict  was  entered  for  the  plaintiff.  Kelly,  C.  B.  reserved  leave 
to  enter  a  verdict  for  the  defendants,  on  the  ground  that  there  was  no 
evidence  of  sufficient  title  in  the  plaintiff  to  enable  him  to  maintain  the 
action. 

A  rule  was  afterwards  obtained  pursuant  to  leave  reserved. 

The  rule  w^as  argued  on  the  21st  and  23rd  of  November,  1874,  and 
the  Court  (Blackburn,  j\Iellor,  and  Lush,  JJ.)  discharged  the  rule  on 
the  ground  that  the  phrase  "leaving  no  issue"  must  be  construed  as 

"having  had  no  issueT"         "^  "  ' — 

^LEASBY,  B.  We  think  that  the  authorities  applicable  to  this  case 
are  so  clear  and  so  strong  that  we  should  not  be  justified  in  saying  that 
they  are  wrong.  The  position  they  lay  down  is,  that  where  an  estate 
is  vested  in  children  after  a  gift  to  a  parent,  then  the  gift  over  in  case 
of  the  parent  dying  "without  leaving  issue"  must  be  read  "having  had 
no  issue"  in  order  to  carry  into  effect  the  intention  of  the  testator: 
and  this  rests  upon  the  highest  authority  and  goes  back  further  than 
the  case  of  Maitland  v.  Chalie,  6  Madd.  243,  at  p.  250,  which  was  a 
decision  of  Leech,  V.  C.  He  says :  "In  this  case  a  clear  vested  inter- 
est is  in  the  first  place  given  to  the  children  of  a  daughter  attaining 
twenty-one ;  if  in  the  clause  which  gives  the  property  over  on  failure 
of  children  of  the  daughter  the  word  'having'  be  read  for  'leaving' 
the  whole  will  will  express  a  consistent  intention  to  that  effect."  Then 
he  says :  "I  feel  myself  bound  by  the  authorities,"  and  he  refers  to 
Woodcock  V.  Duke  of  Dorset,  3  Bro.  C.  C.  569;  3  V.  &  B.  82,  (c), 
which  was  no  doubt  a  case  of  settlement,  but  we  cannot  disregard  it. 
That  case  was  in  the  time  of  Lord  Thurlow.  Then  we  have  the  dis- 
tinct authority  of  Parker,  V.  C,  in  Re  Thompson's  Trusts,  5  De  G.  & 
Sm.  667 ;  22  L.  J.  (Ch.)  273,  who,  in  dealing  with  the  case  expresses 
himself  thus :  "I  think  that  this  case  comes  within  the  authorities  cited 
in  support  of  the  petition.  The  will  gives  a  life  estate  and  then  clearly 
a  vested  interest  in  the  children ;  and  if  any  child  dies  under  twenty- 
one  leaving  issue,  to  the  issue  of  that  child.  Thus  far  everything  is 
vested;  and  then  occurs  the  clause,  'in  case  the  said  Martha  Oliver 
shall  leave  no  child  or  children,  or  leaving  such,  all  of  them  shall  hap- 
pen to  die  under  age  and  without  issue,'  in  which  case  he  gives  the 
fund  over.    It  is  said  that  if  the  word  'leave'  be  understood  in  its  ordi- 


244  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

nary  sense,  the  gift  over  takes  effect,  for  Martha  Oliver  had  no  chil- 
dren who  survived  her.  It  appears  to  me  that  the  testator's  intention 
was  to  give  this  fund  over  only  in  case  the  previous  limitation  should 
fail."  And  then  he  adds  this  remark,  which  is  so  just  and  applicable 
to  all  cases  of  this  description:  "But  I  may  observe  an  observation 
that  may  always  be  made  in  cases  where  there  is  this  kind  of  question, 
that  the  testator  never  contemplated  the  event  which  has  happened  of 
a  child  attaining  twenty-one  and  dying  in  the  lifetime  of  the  tenant  for 
life.  He  assumed  the  child  would  have  lived.''  And  then  he  says, 
"1  consider  the  construction  is  clear  according  to  the  authorities."  And 
he  refers  to  Maitland  v.  Chalie,  6  Madd.  243,  the  case  decided  by  Leach^ 
V.  C,  which  he  says  is  clearly  in  point.  In  addition  to  these  decisions 
we  have  that  of  Kindersley,  V.  C,  in  Ex  parte  Hooper,  1  Drew.  264, 
and  Wood,  V.  C,  in  White  v.  Hill,  Law  Rep,  4  Eq.  265,  which  bring 
the  authorities  down  from  the  time  of  Lord  Thurlow  (1792)  to  the 
present  time  without  dispute.  At  all  events,  I  speak  for  my  learned 
Brothers  as  well  as  for  myself,  we  do  not  feel  justified  in  overruling 
the  decision  of  the  Court  of  Queen's  Bench,  based  on  a  long  series  of 
authorities;   the  judgment  therefore  must  be  affirmed.'^ 

7  "This  construction  cannot  be^4oBtgd_where  the  gift  overJg_im_tlie-death 
of  the"TenautTor  life  •wittnTirrTeaAiDs  any  cETltli'ai  at'his  death,  or  withou 


leaving  auv  ■(.'hlldrginnm  surviving.  Young  v.  Turner,  1  B.  &  S.  5o(P,  In  re 
HanitrtT'SteTffl^irTreTnrritnglRnnT^  Ch.  D.  1S3,  39  Ch.  D.  426."  Theobald  on 
Wills  (7th  Ed.)  p.  706. 


Ch.  G)  GIFTS  ON  FAILURE   OF  ISSUE  245 

CHAPTER  VI 
GIFTS  ON  FAILURE  OF  ISSUE 


PELLS  V.  BROWN. 

(Court  of  King's  Bench,  1620.     Cro.  Jac.  590.) 
See  ante,  p.  38,  for  a  report  of  the  case.^ 


CHADOCK  V.  COWLEY. 

(Court  of  King's  Bench,  1624.     Cro.  Jac.  695.) 

Ejectment  of  lands  in  Bradmere,  of  a  lease  of  William  Hydes.  Upon 
not  guilty  pleaded,  a  special  verdict  was  found,  that  William  Hydes, 
the  lessor's  grandfather,  was  seised  in  fee  of  this  land  in  Bradmere 
and  East-Leak,  holden  in  socage  of  that  manor ;  and  having  two  sons, 
Thomas  and  Francis,  devised  them  by  his  will  in  this  manner,  viz. 
to  his  wife  for  life,  and  after  her  death  all  his  lands  in  Bradmere  to 
Thomas  his  son  and  his  heirs  forever;  and  his  lands  in  East-Leak  to 
Francis  his  son  and  his  heirs  forever.  "Item,  I  will  that  the  survivor 
of  them  shall  be  heir  to  the  other,  if  either  of  them  die  without  issue." 
The  wufe  enters,  and  dies,  Thomas  enters  into  the  lands  in  Bradmere, 
and  devises  them  to  Richard  his  second  son  in  fee,  under  whom  the  de- 
fendant claims;  and  William  the  eldest  son  of  Thomas  enters,  and 
lets  it  to  the  plaintiff.    Et  si  super,  &c. 

The  sole  qviestion  was,  Whether  this  devise  be  an  estate  tail  immedi- 
ate by  the  devise,  or  only  a  contingent  estate,  if  he  died  without  issue 
in  the  life  of  his  brother? 

And  it  was  holden  by  All  the  Court  (absente  LE-\),  that  it  was  an 
estate  tail,  so  the  devise  of  Thomas  was  void :  for  although  it  were  ob- 
jected, that  the  words,  "the  survivor  shall  be  heir  to  the  other  if  he  die 
without  issue,"  are  idle,  for  it  doth  not  appear  that  he  had  any  other 
children ;  and  then  when  the  one  dies  without  issue,  the  other  is  his  • 
heir  by  the  law,  and  so  he  wills  no  more  than  the  law  appoints  ;  sed  non 
allocatur;  for  non  constat  but  that  he  might  have  other  children,  and 
that  by  several  venters ;  and  by  the  devise  he  intended  to  give  it  to 
the  others  by  way  of  devise,  if  he  died  without  issue.  Secondly,  for 
the  words,  "that  the  survivor  shall  be  heir  to  the  other  if  he  dies  with- 
out issue,"  they  seem  to  be  an  estate  tail.    But  if  the  devise  had  been, 

1  So  a  gift  over,  on  the  first  taker  in  fee  dying  "without  leaving  issue  sur- 
viving," is  an  executory-  de^'ise  on  a  definite  failure  of  issue.  Nicholson  v. 
Battle,  57  Pa.  384. 


246  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

that  "if  he  died  without  issue  in  the  life  of  the  other,"  or  "before  such 
an  age,"  that  then  it  shall  remain  to  the  other ;  then  peradventure  it 
should  be  a  contingent  devise  in  tail,  if  it  should  happen,  and  not  oth- 
erwise :  but  being,  "that  the  survivor  shall  be  heir  to  the  other  if  he 
die  without  issue ;  "  that  in  his  intent  is  an  absolute  estate  tail  immedi- 
ately, and  the  remainder  limited  over,  as  7  Edw.  6,  "Devise"  38,  is ; 
and  resembled  it  to  the  case  9  Edw.  3,  "Tail"  21,  and  35  Ass.  pi.  14, 
and  9  Co.  128  and  16  El.  Dyer,  330.  And  that  here  although  the  first 
part  of  the  will  gives  a  fee,  the  second  part  corrects  it,  and  makes  it 
but  an  estate  tail.  Wherefore  it  was  adjudged  for  the  plaintiflf.  Vide 
Dyer,  354  and  122,  124.  And  this  judgment  was  given  upon  the  first 
argument.'' 


NICHOLS  v.  HOOPER. 

(Court  of  Chancery,  1712.     1  P.  Wrns.  198.) 

John  Jackson  seised  in  fee  devised  lands  to  his  wife  Mary  for  life, 
remainder  to  his  son  Thomas  Jackson  and  his  heirs ;  provided,  that 
if  the  said  Thomas  Jackson  should  die  without  issue  of  his  body,  then 
he  gave  £100  apiece  to  his  two  nieces  A.  and  B.  to  be  paid  within  six 
months  after  the  death  of  the  survivor  of  the  said  mother  and  son,  by 
the  person  who  should  inherit  the  premises ;  and  in  default  of  pay- 
ment, as  aforesaid,  then  the  testator  devised  the  lands  to  the  legatees 
for  payment,  and  died. 

The  testator's  wife  Mary  died,  and  the  son  Thomas  Jackson  died, 
leaving  a  daughter,  which  daughter,  within  the  said  six  months  after 
the  death  of  her  father  Thomas  Jackson  died  also  without  issue;  the 
bill  was  to  have  the  £200  and  for  the  plaintiffs. 

It  was  urged,  that  though  Thomas  Jackson  left  issue  living  at  the 
time  of  his  death,  yet  when  that  issue  died  without  issue,  then  did 
Thomas  Jackson  die  without  issue ;  that  if  a  man  should  devise  lands 
to  A.  in  tail,  and  if  A.  died  without  issue,  then  to  B.  if  A.  should  leave 
issue,  and  that  issue  should  afterwards  die  without  issue,  B.'s  estate 
would  plainly  commence.  So  if  a  rent  were  limited  to  commence  upon 
tenant  in  tail's  dying  without  issue,  if  tenant  in  tail  left  issue,  that 

2  Accord:  Burrough  v.  Foster,  6  R.  I.  534  (devise  to  grandchildren  and 
*"to  their  heirs  and  assigns  forever,"  with  a  gift  over  "if  any  of  my  grand- 
children should  die  leaving  no  surviving  issue,"  then  to  "the  survivor  or  sur- 
vivors of  such  as  shall  die  as  aforesaid,"  and  "to  their  heirs  and  assigns  for- 
ever" ;  the  grandchildren  took  an  estate  tail) ;  Hall  v.  Priest,  6  Gray  (Mass.) 
18  (devise  to  the  testator's  children  and  to  their  "heirs  and  assigns  forever," 
with  a  gift  over  "in  case  of  the  decease  of  either  of  my  said  children  witJi- 
out  issue,  the  share  of  such  deceased  child  or  children  shall  be  equally  divided 
to  and  among  his  or  her  surviving  brothers  and  sisters"). 

Contra:  Anderson  v.  Jackson,  IG  Johns.  (N.  Y.)  382,  8  Am.  Dec.  330;  St. 
John  V.  Chew,  12  Wheat.  153,  6  L.  Ed.  583;  Abbott  v.  Essex  Co.,  18  How. 
202,  15  L.  Ed.  352  (semble) ;  Lewis  v.  Claiborne,  5  Yerg.  (Tenn.)  3G9,  26  Am. 
Dec.  270;  Summers  v.  Smith,  127  111.  645,  650,  21  N.  E.  191;  Greenwood  v. 
Verdon,  1  K.  &  J.  74  (semble) ;   Den  v.  Allaire,  20  N.  J.  Law,  G,  27. 


Ch.  G)  GIFTS  ON   FAILURE   OF  ISSUE  247 

afterwards  died  without  issue,  the  rent  must  commence;  and  it  was 
said  to  be  the  stronger,  in  regard,  in  this  case,  here  was  a  death  with- 
out issue  within  six  months  after  the  death  of  the  survivor;  (scil.)  the 
issue  of  Thomas  died  without  issue  within  six  months  after  the  death 
of  Thomas  her  father. 

Vernon  &  Cur'  [Lord  Kkeper  Harcourt]  cont' :  Thomas  Jack- 
son is  not  by  this  will  made  tenant  in  tail,  but  continues  tenant  in  fee- 
simple  ;  so  that  this  is  not  like  the  limitation  of  an  estate ;  for  it  is 
agreed,  that  in  case  of  limitation  of  estates,  in  construction  of  law, 
whenever  there  is  a  failure  of  issue  of  J.  S.  though  J.  S.  died  leaving 
issue  at  his  death,  yet  from  that  time  J.  S.  is  dead  without  issue. 

But  where  a  legacy  is  given  by  a  will,  to  commence  upon  this  con- 
tingency, (scil.)  if  J.  S.  shall  die  without  issue,  this  shall  be  taken  ac- 
cording to  common  parlance,  viz.  issue  living  at  his  death ;  for,  in  com- 
mon parlance,  if  J.  S.  leaves  issue,  he  does  not  die  without  issue ;  and 
it  cannot  be  intended  that  the  testator  designed,  whenever  there  should 
be  a  failure  of  issue  of  Thomas,  (which  might  be  100  years  hence,) 
that  then  these  legacies,  which  were  meant  only  as  personal  provisions, 
should  take  effect. 

However,  in  this  case,  with  respect  to  the  legatees,  if  the  legacies 
take  any  eft'ect,  the  words  of  the  devise  pass  a  legal  interest,  and  the 
court  does  not  hinder  the  plaintiffs  from  proceeding  at  law,  in  an  eject- 
ment, but  dismisses  the  bill. 

Note.  This  differed  from  the  case  of  Goodwin  v.  Clark,  1  Lev.  35, 
where  a  settlement  was  on  husband  and  wife  for  their  lives,  remainder 
to  the  first,  &c.,  son  in  tail  male,  and  if  the  husband  should  die  with- 
out issue  male,  remainder  to  the  daughters  for  a  term  of  years,  for  the 
raising  of  £1500  for  their  portions;  and  the  husband  died  leaving  is- 
sue a  son  and  a  daughter,  after  which  the  son  died  without  issue : 

Whereupon  it  was  adjudged,  that  the  daughter  should  have  the 
£1500,  for  that  whenever  the  issue  male  of  the  husband  failed,  he  might 
properly  be  said  to  be  dead  without  issue  male.  8  Co.  86,  Buckmere's 
Case.  And  this  very  expectation,  remote  and  precarious  as  it  was  (for 
there  being  an  estate-tail,  a  recovery  suffered  by  the  tenant  in  tail  would 
have  barred  the  portions  expectant  thereupon)  was,  notwithstanding, 
of  advantage  to  the  daughters  with  respect  to  their  advancement  in 
marriage;  whereas  in  the  principal  case,  the  estate  being  a  fee,  no  re- 
covery could  be  suffered  thereof,  and  consequently  there  was  danger  of 
a  perpetuity. 


248  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

HUGHES  V.  SAYER. 

(Court  of  Chancery,  1718.     1  P.  Wuis.  534.) 

John  Hughes,  after  several  legacies,  by  his  will  directed  that  the  sur- 
plus of  his  personal  estate  should  be  divided  by  his  executors  into  ten 
shares,  three  shares  whereof  should  be  paid  to  his  nephew  and  niece, 
Paul  and  Anne  Hughes,  children  of  a  deceased  brother,  and  upon 
either  of  their  dying  without  children,  then  to  the  survivor,  and  if  both 
should  die  without  children,  then  to  the  children  of  the  testator's  other 
brothers  and  sisters. 

The  question  was,  whether  this  devise  over  of  a  personal  estate  upon 
the  devisee's  dying  without  children,  was  good  or  not? 

And  his  Honor  [Sir  Joseph  Jekyel,  M.  R.],  having  taken  time  to 
consider  it,  gave  judgment  that  the  word  (children)  when  unborn,  had 
been  in  case  of  a  will  construed  to  be  synonymous  with  issue,  and  there- 
fore would  in  a  will,  create  an  estate  tail ;  and  if  the  word  (children) 
was  understood  to  be  the  same  with  issue  in  the  present  case,  then  the 
devise  over  of  the  personal  estate  upon  a  death  without  issue  would 
be  void;  but  that  here  the  words  (dying  without  children)  must  be 
taken  to  be  children  living  at  the  death  of  the  party.  For  that  it  could 
not  be  taken  in  the  other  sense  (that  is)  whenever  there  should  be  a 
failure  of  issue,  because  the  immediate  limitation  over  was  to  the  sur- 
viving devisee,  and  it  was  not  probable,  that  if  either  of  the  devisees 
should  die  leaving  issue,  the  survivor  should  live  so  long  as  to  see  a 
failure  of  issue,  which  in  notion  of  law  was  such  a  limitation  as  might 
endure  forever. 

And  therefore,  by  reason  of  the  limitation  over  in  case  of  either  of 
the  devisees  dying  without  children,  then  to  the  survivor,  the  testator 
must  be  intended  to  mean  a  dying  without  children,  living  at  the  death 
of  the  parent,  consequently  the  devise  over  good.^ 


FORTH  V.  CHAPMAN. 
(Court  of  Chancery,  1720.    1  P.  Wms.  663.) 

This  cause  was  reserved  for  the  judgment  of  the  Master  of  the 
Rolls  [Sir  Joseph  Jekyll],  who  after  time  taken  to  consider  thereof, 
gave  his  opinion.    The  case  was, 

One  Walter  Gore  by  will  devises  thus :  all  the  residue  of  his  estate 
real  and  personal  he  gave  to  John  Chapman  in  trust,  only  the  lease  of 
the  ground  he  held  of  the  school  of  Bangor,  for  the  use  of  his  nephews 
William  Gore  and  Walter  Gore  during  the  term  of  the  lease  as  herein- 
after limited,  and  having  given  several  legacies,  declared  his  will  as  to 
the  remainder  of  the  said  estate,  as  well  as  his  freehold  house  in  Shaw's 

sAccord:    Clapp  v.  Fogleman,  21  N.  C.  4G6. 


Ch.  6)  GIFTS   ON   FAILURE   OF  ISSUE  249 

Court,  with  all  the  rest  of  his  goods  and  chattels  whatsoever  and  where- 
soever, he  gave  to  his  nephew  William  Gore ;  and  if  either  of  his 
nephews  William  or  Walter  should  depart  this  life  and  leave  no  issue 
for  their  respective  bodies,  then  he  gave  the  said  [leasehold]  prem- 
ises to  the  daughter  of  his  brother  William  Gore,  and  the  children  of 
his  Sister  Sibley  Price ;  upon  which  the  question  arose,  whether  the 
limitation  over  of  the  leasehold  premises  to  the  children  of  the  devisor's 
brother  and  sister,  was  void  as  too  remote? 

The  court  was  of  opinion  that  the  devise  over  was  void,  and  said 
that  had  the  words  been,  if  A.  or  B.  should  die  without  issue,  the  re- 
mainder over;  this  plainly  would  have  been  void,  and  exactly  the 
case  of  Love  and  Wyndham,  1  Sid.  450,  1  Vent.  79,  1  Mod.  50. 

Now  there  is  no  diversity  betwixt  a  devise  of  a  term  to  one  for  life, 
and  if  he  die  without  issue,  remainder  over,  and  a  devise  thereof  to 
one  for  life,  with  such  remainder,  if  he  die  leaving  no  issue ;  for  both 
these  devises  seem  equally  relative  to  the  failure  of  issue  at  any  time 
after  the  testator's  death ;  and  for  this  the  court  cited  and  much  relied 
upon  1  Leon.  285,  Lee's  Case,  where  one  devised  lands  to  his  second 
son  William,  and  if  William  should  depart  this  life  not  having  issue, 
then  the  testator  willed  that  his  sons-in-law  should  sell  his  lands,  and 
died :  William  had  issue  a  son  at  the  time  of  his  death,  who  afterwards 
died  without  issue;  upon  which  it  was  clearly  resolved  by  the  whole 
court,  that  though  literally  William  had  issue  a  son  at  his  death,  yet 
v/hen  such  issue  died  without  issue,  there  should  be  a  sale ;  for  at  what 
time  soever  there  was  a  failure  of  issue  of  William,  he  upon  the  mat- 
ter died  without  issue.  And  in  a  formedon  in  reverter  or  remainder, 
whenever  there  is  a  failure  of  issue,  then  is  the  first  donee,  in  sup- 
position of  law,  dead  without  issue. 

His  Honor  mentioned  the  case  of  Hughes  and  Sayer,  which  he  him- 
self upon  consideration  had  determined ;  and  said  there  was  a  diversity 
betwixt  issue  and  children,  issue  being  nomen  collectivum ;  and  also 
between  things  merely  personal  and  chattels  real ;  more  particularly 
in  the  case  of  Hughes  and  Sayer,  by  the  devise  over  of  the  money  to 
the  survivor,  if  either  of  the  donees  should  die  without  children,  the 
testator  of  necessity  must  be  intended  to  mean  a  death  of  the  donee 
without  children  living  at  his  death ;  for  to  wait  until  a  failure  of  issue, 
might  be  to  wait  forever. 

It  being  also  debated  by  counsel,  where  the  residue  of  the  term 
vested,  in  regard  the  devise  was  to  William  and  Walter  Gore :  the 
court  declared  that  the  subsequent  words  increased  their  interest,  and 
gave  the  whole  term  to  them,  it  being  plainly  intended  to  dispose  of 
and  devise  away  the  whole  term  from  the  testator's  executors ;  that  a 
devise  of  a  term  to  one  for  a  day  or  an  hour,  is  a  devise  of  the  whole 
term,  if  the  limitation  over  is  void,  and  it  appears  at  the  same  time 
that  the  whole  is  intended  to  be  disposed  of  from  the  executors. 

Afterwards  in  Trin,  Term,  1720,  this  case  coming  before  Lord 
Parker  upon  an  appeal,  his  Lordship  reversed  the  decree;    and  said, 


250  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

that  if  I  devise  a  term  to  A.  and  if  A.  die  without  leaving  issue,  re- 
mainder over,  in  the  vulgar  and  natural  sense,  this  must  be  intended 
if  A.  die  without  leaving  issue  at  his  death,  and  then  the  devise  over 
is  good;  that  the  word  [die]  being  the  last  antecedent,  the  words  [with- 
out leaving  issue]  must  refer  to  that.  Besides,  the  testator  who  is 
inops  concilii,  will,  under  such  circumstances,  be  supposed  to  speak 
in  the  vulgar,  common  and  natural,  not  in  the  legal  sense. 

His  Lordship  likewise  took  notice  that  in  a  formedon  in  remainder, 
where  tenant  in  tail  leaves  issue,  which  issue  afterwards  dies  without 
issue,  whereupon  such  writ  is  brought,  the  formedon  says,  that  the 
tenant  in  tail  did  die  leaving  issue  J.  S.  which  J.  S.  died  afterwards 
without  issue,  and  so  the  first  donee  in  tail  died  without  issue,  thus 
the  pleading  says,  that  the  donee  in  tail  died  leaving  issue  at  his  death ; 
consequently  the  words  [leaving  issue]  refer  to  the  time  of  the  death  of 
the  tenant  in  tail,  and  if  the  words  of  a  will  can  bear  two  senses,  one 
whereof  is  more  common  and  natural  than  the  other,  it  is  hard  tO'  say 
a  court  should  take  the  will  in  the  most  uncommon  meaning;  to  do 
what?  to  destroy  the  will. 

2dly,  he  said  that  the  reason  why  a  devise  of  a  freehold  to  one  for 
life,  and  if  he  die  without  issue,  then  to  another,  is  determined  to  be 
an  estate-tail,  is  in  favor  of  the  issue,  that  such  may  have  it,  and  the 
intent  take  place ;  but  that  there  is  the  plainest  difference  betwixt  a 
devise  of  a  freehold,  and  a  devise  of  a  term  for  years ;  for  in  the  devise 
of  the  latter  to  one,  and  if  he  die  without  issue,  then  to  another,  the 
words  [if  he  die  without  issue]  .cannot  be  supposed  to  have  been  in- 
serted in  favor  of  such  issue,  since  they  cannot  by  any  construction 
have  it. 

3dly,  his  Lordship  observed  what  seemed  very  material,  (and  yet 
had  been  omitted  in  the  pleadings,  and  also  by  the  counsel  at  the  bar) 
that  by  this  will  the  devise  carried  a  freehold  as  well  as  leasehold 
estate  to  William  Gore,  and  if  he  oi;  Walter  died  leaving  no  issue, 
then  to  the  children  of  his  brother  and  sister,  in  which  case  it  was 
more  difficult  to  conceive  how  the  same  words  in  the  same  will,  at  the 
same  time,  should  be  taken  in  two  different  senses.  As  to  the  free- 
hold, the  construction  should  be,  if  William  or  Walter  died  without 
issue  generally,  by  which  there  might  be  at  any  time  a  failure  of  issue ;  * 

^Accord:  As  to  real  estate:  Hulburt  v.  Einerson,  16  Mass.  241;  Morehouse 
V.  Cotheal,  21  N.  J.  Law,  480;  Id.,  22  N.  J.  Law  (2  Lab.)  430;  Chetwood  v. 
Winston,  40  N.  J.  Law,  337 ;    Eichelberger  v.  Burnitz,  9  Watts  (Pa.)  447. 

Contra,  as  to  real  estate:  Harris  v.  Smith,  16  Ga.  545  (1855) ;  Flinn  v. 
Davis,  18  Ala.  132 ;  Daniel  v.  Thomson,  14  B.  Mon.  (Ky.)  662 ;  Smith  v.  Kim- 
bell,  153  111.  368,  38  N.  E.  1029 ;   Metzen  v.  Schopp,  202  111.  275,  67  N.  E.  36. 

In  Parish's  Heirs  v.  Ferris,  6  Ohio  St.  563,  the  gift  over  was  in  case  the 
first  taker  "shall  die  without  children."  There  was  some  ground  for  contend- 
ing that  children  meant  heirs  of  the  body  or  issue.  The  court  held  that 
even  if  it  had  that  meaning  the  gift  over  was  on  a  definite  failure  of  issue.  J. 
R.  Swan,  J.,  said: 

"It  is  a  singular  fact  that,  with  the  repeated  decisions  of  the  English  courts 
upon  this  subject,  testators,  from  generation  to  generation,  persisted  in  using 


Ch.  G)  GIFTS  ON   FAILURE   OF  ISSUH  251 

and  with  respect  to  the  leasehold,  that  the  same  words  should  be  in- 
tended to  signify  their  dying  without  leaving  issue  at  their  death: 
however,  Lord  Chancellor  said,  it  might  be  reasonable  enough  to 
take  the  same  words,  as  to  the  different  estates,  in  different  senses, 
and  as  if  repeated  by  two  several  clauses,  viz.  I  devise  to  A.  my  freehold 
land,  and  if  A.  die  without  leaving  issue,  then  to  B.,  and  I  devise  my 
leasehold  to  A.  and  if  A.  die  without  leaving  issue,  then  to  B.,  in 

these  natural  words,  and  which  were  held  to  be  inoperative  and  void,  until, 
in  the  first  year  of  the  reijLin  of  the  present  Queen,  a  statute  was  passed  de- 
claring that  the  words  'die  without  issue,'  or  other  words  which  may  import 
a  want  or  failure  of  issue,  should  be  construed  to  mean  dying  without  issue 
living  at  the  death  of  the  person,  and  not  an  indetinite  failure  of  issue,  un- 
less a  contrary  intention  appear  by  the  will.  The  English  rule,  adopted  in 
Virginia,  and  in  a  modified  form  in  New  York,  has  met  the  same  fate  by  leg- 
islative interposition.  In  Ohio,  as  in  Iventuclvy,  the  English  rule  of  interpreta- 
tion has  never  been  sanctioned ;  and  in  the  latter  State,  the  subject  was  very 
fully  considered  in  the  case  of  Daniel  v.  Thomson,  14  B.  Mon.  (Ky.)  6G2,  and 
the  English  rule  was  rejected  as  one  unknown  to  the  community,  contrary  to 
the  natural  sense  and  common  use  of  words,  founded  upon  laws  and  estates 
inapplicable  to  titles  in  Kentucky,  where,  as  here,  estates  tail  are  abrogated, 
and  so  evaded  by  courts  as  to  be  made  to  depend  upon  the  discretion  and 
variable  opinions  of  judges.  If  there  be  any  rule  of  interpretation  of  words 
which  defeats  the  intention  of  the  testator,  and  to  which  the  following  lan- 
guage of  Justice  Hitchcock  is  applicable,  it  is  the  English  rule  now  under  con- 
sideration: 'I  must  be  permitted  to  say  that  these  rules,  in  most  cases,  are 
applied  not  for  the  purpose  of  ascertaining,  but  of  defeating  the  intention  of 
the  devisor.  In  this  State,  however,  we  are  required,  by  statute,  to  carry  out 
this  intention ;  and  I  presume  no  such  statute  would  have  been  passed,  had 
it  not  been  supposed  that  these  antiquated  rules  of  construction  were  too 
much  regarded  by  our  courts.' 

"We  are  all  of  the  opinion,  for  the  reasons  which  have  been  indicated,  that 
the  words,  'if  he  die  without  issue,'  or  'without  leaving  issue,'  or  'heirs  of  his 
body,'  or  'children,'  or  other  words  of  similar  import,  are  to  be  interpreted 
according  to  their  plain,  popular  and  natural  meaning,  as  referring  to  the 
time  of  the  person's  death,  unless  the  contrary  intention  is  plainly  expressed 
in  the  will,  or  is  necessary  to  carry  out  its  undoubted  purposes.  We  could, 
without  impeaching  the  old  English  rule  of  interpretation,  find  in  the  words 
of  the  will  before  us,  and  in  the  fact  that  the  brotliers  and  sisters  of  the  tes- 
tator were  living  at  the  time  he  made  his  will,  sufficient  to  restrict  the  con- 
tingency and  the  devise  over,  to  the  time  of  the  decease  of  his  daughter.  But 
we  are  unwilling  to  make  an  exception  by  which  we  sanction  the  English  con- 
struction of  the  words  under  consideration,  as  referring  in  general  to  an  in- 
definite failure  of  issue,  and  at  the  same  time  make  the  case  before  us  an  ex- 
ception to  that  rule;  thus  leaving  open  a  wide  field  of  uncertain  interpreta- 
tion of  words  and  circumstances,  so  that  no  man  would  know  the  nature  of  an 
estate  which  depended  upon  the  interpretation  of  these  or  the  like  words,  un- 
til there  had  been  a  decision  on  the  particular  will  on  which  the  question 
might  arise. 

"If  the  English  rule  of  interpretation  had  been  recognized  by  our  courts  as 
a  rule  of  property  we  would  not  disturb  it.  It  would  then  be  a  fit  subject  of 
legislation.  But  it  never  has  been  recognized ;  and  the  uniform  course  of  the 
decisions  of  the  courts  of  this  State  has  been  to  so  construe  wills  as  to  carry 
into  effect  the  intention  of  testators.  To  adopt  the  English  rule,  is  clearly  to 
defeat  what  every  person  must  acknowledge  is  the  real  and  the  lawful  in- 
tention of  testators;  it  is  to  presume  that  a  testator  intended  to  create  an 
estate  forbidden  by  our  statute  relating  to  entailments ;  and  a  rule  too  which, 
wherever  recognized  by  courts,  has  been  changed  by  legislation. 

"Indeed  the  only  certain  and  stable  principle  is  to  hold  that  these  words 
in  a  will,  as  in  other  cases,  must  be  taken  in  their  natural  sense,  unless  a 
contrary  intention  is  plainly  expressed." 


252  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

which  case  the  different  clauses  would  (as  he  conceived)  have  the  dif- 
ferent constructions  above-mentioned  to  make  both  the  devises  good ; 
and  it  was  reasonable  it  should  be  so,  ut  res  magis  valeat  quam  pereat. 


TROTTER  V.  OSWALD. 

(Court  of  Chancery,  1787.    1  Cox,  317.) 

The  Bishop  of  Raphoe  in  Ireland,  by  his  will  in  July,  1776,  gave  all 
the  residue  of  his  property  whatsoever,  both  real  and  personal,  in 
trust  to  the  plaintiff  Trotter,  and  to  another  trustee,  "for  the  use  of 
John  Bogle  during  his  life,  and  to  the  lawful  heirs  of  his  body  after 
his  demise,  but  in  case  of  his  dying  without  issue  of  his  body,  after 
his  decease  I  give  all  such  residue  to  John  Oswald." 

The  question  was,  whether  the  limitation  to  John  Oswald  was  or 
was  not  too  remote. 

Pinbury  v.  Elhin,  1  P.  W.  563,  and  Theebridge  v.  Kilburne,  2  Ves. 
233,  were  cited. 

Maste;r  of  thk  Rolls  [Sir  Lloyd  Kenyon].  In  general,  words 
which  give  an  estate  tail  in  land,  give  the  absolute  property  in  person- 
al estate,  and  a  limitation  over  of  personalty,  after  an  indefinite  fail- 
ure of  issue,  is  clearly  void ;  but  if  the  failure  of  issue  is  limited  within 
a  certain  bound  prescribed  by  law,  then  such  limitation  is  allowed. 
The  questions  therefore  on  this  subject,  are  questions  of  construction, 
viz.,  whether,  according  to  the  fair  construction  of  the  words,  such 
limits  are  transgressed.  In  this  case  I  think  a  doubt  can  scarcely  be 
framed.  The  residue  is  first  given  to  Bogle  and  the  lawful  heirs  of 
his  body ;  if  the  will  had  stopped  here,  it  would  most  clearly  have  giv- 
en him  the  absolute  property;  so,  if  it  had  rested  on  the  words,  "if 
he  die  without  issue;"  but  the  important  words  follow,  viz.  "after 
his  decease  I  give,"  &c.  These  make  it  a  contingency  with  a  double 
aspect ;  if  he  had  a  child  at  his  death,  then  the  limitation  over  would 
be  at  an  end;  but  if  not,  the  limitation  over  is  within  legal  limits. 
This  was  therefore  a  good  limitation  in  its  creation.  The  event  which 
may  give  it  effect,  or  destroy  it,  is  still  in  the  womb  of  time;  and 
therefore  at  present  no  direction  can  be  given.^ 

6  See  Eix  parte  Davies,  2  Sim.  N.  S.  114  (real  estate  devised  to  the  testator's 
eldest  son  and  his  heirs,  with  a  gift  over  in  case  said  soa  should  die  without 
leaving  any  lawful  issue  of  his  body,  the  freehold  estate  should  at  his  death 
be  divided  into  equal  parts,  one  of  which  the  testator  devised  to  his  second 
son  and  his  heirs,  and  the  other  to  his  daughter  and  her  heirs;  the  gift  over 
was  on  a  definite  failure  of  issue) ;  Wilson  v.  Wilson,  46  N.  J.  Eq.  321,  19 
Atl.  132  (devise  to  the  testator's  daughter,  and  if  she  die  without  leaving  is- 
sue "then  it  is  my  will  that  after  her  decease  I  give  and  devise  the  remainder 
and  residue  of  my  estate,  both  real  and  personal,  whatever  it  may  be  at  the 
decease  of  my  said  daughter,"  to  another  in  fee;  the  gift  over  was  on  a  def- 
inite failure  of  issue,  but  the  daughter  was  not  impliedly  given  any  power  to 
sell  or  dispose  of  the  subject-matter  of  the  devise) ;  Ide  v.  Ide,  5  Mass.  500 
(the  gift  over  was  if  the  first  taker  "leave  no  lawful  heirs,  what  estate  he 


Ch.  6)  GIFTS  ON  FAILURE   OF  ISSUE  253 

ROE  ex  dem.  SHEERS  v.  JEFFERY. 

(Court  of  King's  Bench,  1798.     7  Term  R.  5S9.) 

The  following  case  was  reserved  on  the  trial  of  this  ejectment  at 
the  last  summer  Warwick  assizes  for  the  opinion  of  this  court. 

J.  Goodacre,  being  seised  in  fee  of  the  premises  in  question,  by  will 
dated  20th  May,  1754,  devised  to  his  wife  A.  Goodacre  for  life,  after 
her  decease  to  his  daughter  Mary  Friswell,  wife  of  W.  Friswell  for 
life,  and  after  her  death  to  his  grandson  T.  Friswell,  son  of  W.  and 
M.  Friswell  and  to  his  heirs  forever;  "but  in  case  his  said  grandson 
T.  Friswell  should  depart  this  life  and  leave  no  issue,  then  (his  will 
was)  that  the  said  dwelling-house,  &c.,  should  be  and  return  unto 
Elizabeth,  ]Mary,  and  Sarah,  the  three  daughters  of  W.  and  M.  Fris- 
well or  the  survivor  or  survivors  of  them  to  be  equally  divided  be- 
twixt them  share  and  share  alike ;"  nevertheless  his  will  was  that  the 
said  premises  should  go  to  his  son  W.  Goodacre  for  life  immediately 
after  the  decease  of  his  wife  A.  Goodacre,  "and  after  his  decease  the 
said  premises  and  every  part  thereof  to  go  as  above  mentioned  to  his 
daughter  M.  Friswell  and  her  issue  as  aforesaid."  On  the  devisor's 
death  in  1757,  his  wife  A.  Goodacre  entered,  and  continued  in  pos- 
session until  her  death  in  April  1762,  when  W.  Goodacre  the  son  en- 
tered. In  Trinity  term  1764  the  said  Mary  Friswell  the  daughter 
(her  husband  being  then  dead),  Thomas  Friswell  the  grandson  and 
W.  Goodacre  levied  a  fine  of  the  premises  in  question,  the  uses  of 
which  were  declared  to  be  to  E.  Inge  to  make  him  tenant  to  the 
praecipe  in  order  that  a  common  recovery  might  be  suffered ;  in  the 
Trinity  term  following  a  recovery  was  suffered,  and  the  uses  were 
declared  to  be  to  T.  Goodacre  and  T.  Cater  his  trustee,  who  after- 
wards conveyed  the  premises  to  W.  Jeffery  one  of  the  defendants. 
T.  Friswell,  the  devisor's  grandson,  died  in  September  1766  unmar- 
ried and  without  issue,  never  having  been  in  the  possession  of  the 
premises.  Mary  Friswell,  the  daughter,  died  in  February  1779.  And 
W.  Goodacre,  the  last  tenant  for  life,  died  in  March  1795.  Sarah 
Friswell,  one  of  the  daughters  of  W.  and  M.  Friswell,  died  in  August 
1782;  Elizabeth  another  of  the  daughters  and  one  of  the  lessors  of 
the  plaintiff  married  Sheers  and  survived  him;  and  Mary  the  third 
daughter  married  J.  Mawson,  and  they  are  the  other  two  lessors  of 
the  plaintiff.  The  above  defendants  are  tenants  in  possession  of  the 
whole  of  the  premises.  An  actual  entry  was  made  by  the  lessors  of 
the  plaintiff  after  the  death  of  W.  Goodacre  and  before  the  day  of 
the  demises  laid  in  the  declaration. 

This  case  was  argued  in  last  Michaelmas  term  by, 

Reader,  for  the  plaintiff. 

Romilly,  contra. 

shall  leave,  to  he  equally  divided"  between  J.  &  N. ;  held,  the  gift  over  was 
on  a  definite  failure  of  issue  only  because  of  the  words  "what  estate  he  shall 
leave"). 


254  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

The  court  said  they  would  consider  of  the  case ;  but 

Lord  Kenyon,  C.  J.,  then  said  that  the  distinction  taken  in  Forth 
V.  Chapman,  that  the  very  same  words  in  the  same  clause  in  a  will 
should  receive  one  construction  as  applied  to  one  species  of  property 
and  another  construction  as  applied  to  another,  was  not  reconcileable 
with  reason :  but  that  if  it  had  become  a  settled  rule  of  property  it 
might  be  dangerous  to  overturn  it.  That  it  had  been  quarrelled  with 
by  different  judges,  and  that  small  circumstances  had  been  relied  on 
to  take  particular  cases  out  of  the  rule.  His  Lordship  added  that  he 
had  then  formed  no  decisive  opinion  of  this  case,  but  that  it  appeared 
to  him  that  there  were  circumstances  in  the  case  to  show  an  intention 
in  the  testator  that  by  leaving  no  issue  he  meant  a  failure  of  issue  of 
T.  Friswell  at  the  time  of  his  death,  the  remainders  over  being  life 
estates  only.  That  he  was  not  then  prepared  to  unsay  what  he  had 
said  in  Porter  v.  Bradley,  3  T.  R.  146,  in  which  he  had  not  given  any 
judicial  opinion  respecting  the  distinction  taken  in  Forth  v.  Chapman, 
but  had  merely  said  that  it  required  a  good  deal  of  argument  to  con- 
vince him  of  the  propriety  of  that  distinction. 

The  case  accordingly  stood  over,  and  now 

Lord  Ke^nyon,  C.  J.,  delivered  the  opinion  of  the  court,  after  stating 
the  case. 

When  we  read  this  case  at  first,  it  appeared  to  us  that  there  was  no 
difficulty  in  it :  but  the  defendant's  counsel,  in  arguing  it,  seemed  to 
think  that  if  we  decided  against  his  client  the  established  law  of  the 
land  would  be  overturned,  and  he  pressed  the  case  of  Forth  v.  Chap- 
man on  us  with  peculiar  force.  But  it  did  not  strike  me  in  the  same 
light,  and  on  the  best  consideration  that  I  have  since  been  able  to  give 
to  it  at  different  times  I  think  that  this  is  a  clear  case  and  may  be  de- 
cided on  principles  that  have  not  been  disputed  for  a  century.  We 
had  occasion  a  few  days  ago  to  advert  to  this  doctrine,  when  we  said 
that  this  is  a  question  of  construction  depending  on  the  intention  of 
the  party;  and  nothing  can  be  clearer  in  point  of  law  than  that  if  an 
estate  be  given  to  A.  in  fee,  and  by  way  of  executory  devise  an  estate 
be  given  over  which  may  take  place  within  a  life  or  lives  in  being  and 
21  years  and  the  fraction  of  a  year  afterwards,  the  latter  is  good  by 
way  of  an  executory  devise.  The  question  therefore  in  this  and  simi- 
lar cases  is,  whether  from  the  whole  context  of  the  will  we  can  col- 
lect that,  when  an  estate  is  given  to  A.  and  his  heirs  forever  but  if  he 
die  without  issue  then  over,  the  testator  meant  dying  without  issue 
living  at  the  death  of  the  first  taker.  The  rule  was  settled  so  long  ago 
as  in  the  reign  of  James  the  First,  in  the  case  of  Pells  v.  Brown,  Cro. 
Jac.  590,  where  the  devise  being  to  Thomas  the  second  son  of  the  de- 
visor and  his  heirs  forever,  and  if  he  died  without  issue  living  William 
his  brother  then  William  should  have  those  lands  to  him  and  his  heirs 
forever,  the  limitation  over  was  a  good  executory  devise.  That  case 
has  never  been  questioned  or  shaken,  but  it  has  been  adverted  to  as 
an  authoritv  in  every  subsequent  case  respecting  executory  devises ; 


Ch.  G)  GIFTS  ON  FAILURE   OF  ISSUE  255 

it  is  considered  as  a  cardinal  point  on  this  head  of  the  law,  and  can- 
not be  departed  from  without  doing  as  much  violence  to  the  estab- 
lished law  of  the  land  as  (it  was  supposed  by  the  defendant's  counsel) 
we  should  do  if  we  decided  this  case  against  him.  On  looking 
through  the  whole  of  this  will  we  have  no  doubt  but  that  the  testator 
meant  that  the  dying  without  issue  was  confined  to  a  failure  of  issue 
at  the  death  of  the  first  taker ;  for  the  persons  to  whom  it  is  given 
over  were  then  in  existence,  and  life  estates  are  only  given  to  them. 
Now  taking  all  this  into  consideration  together,  it  is  impossible  not  to 
see  that  the  failure  of  issue  intended  by  the  testator  was  to  be  a  fail- 
ure of  issue  at  the  death  of  the  first  taker;  and  if  so,  the  rule  of  law 
is  not  to  be  controverted.  It  is  merely  a  question  of  intention,  and 
we  are  all  clearly  of  opinion  that  there  is  no  doubt  about  the  testator's 
intention.  The  consequence  of  this  is  that  there  must  be  judgment 
for  the  plaintiff. 

Postea  to  the  plaintiff.^ 


PROPOSED  LEGISLATION ' 

In  any  gift,  grant  or  devise  hereinafter  taking  effect,  a  limitation  of 
an  executory  interest  contingent  upon  the  event  of  a  prior  taker  "having 
no  issue"  or  "dying  without  issue"  or  "dying  without  leaving  issue" 
(or  using  words  of  similar  import),  shall  not  be  held  to  refer  to  an  in- 
definite failure  of  issue,  but  shall  be  deemed  to  refer  to  the  want  or 
failure  of  issue  at  the  time  of  the  death  of  the  person  named  as  an- 
cestor. 

6  Where,  however,  the  testatrix  bequeathed  personal  estate  to  her  daughter 
and  her  heirs,  and  in  case  she  dies  without  issue  to  be  divided  between  four 
nephews  and  nieces  named,  one  of  them  to  take  only  for  life  and  her  part 
to  be  divided  between  the  survivors,  the  gift  over  was  upon  an  indefinite 
failure  of  issue  and  void  for  remoteness:    Barlow  v.  Salter,  17  Ves.  479. 

7  Prepared  by  Professor  Ernst  Freund  and  embodied  in  the  draft  of  a  bill 
presented  to  the  Illinois  Legislature  at  its  sessions  in  1907  and  1909.  See, 
also,  1  lU.  Law  Rev.  314,  315. 


256  CONSTRUCTION   OF   LIMITATIONS  (Part  2 

CHAPTER  VII 
IMPLICATION  OF  CPvOSS-LIMITATIONS  ^ 


SCOTT  V.  BARGEMAN. 

(Court  of  Chancery,  1722.    2  P.  Wms.  68.) 

One  has  a  wife  and  three  daughters,  A.,  B.,  and  C,  and  being  pos- 
sessed of  a  personal  estate,  devises  all  to  his  wife,  upon  condition, 
that  she  would  immediately  after  his  death  pay  £900  into  the  hands  of 
J.  S.  in  trust  to  lay  out  the  same  at  interest,  and  pay  the  interest 
thereof  to  his  wife  for  her  life,  if  she  shall  so  long  continue  a  widow ; 
and  after  her  death  or  marriage,  in  trust  that  J.  S.  shall  divide  the 
£900  equally  among  the  three  daughters,  at  their  respective  ages  of 
twenty-one,  or  marriage,  provided  that  if  all  his  three  daughters 
should  die  before  their  legacies  should  become__pavabj_e,  then  the 
m'otTierr~uhom  the  testator  also  made  executrix,  should  have  the 
wlTole,,^2QQ^aid  tojier.. 


'he  wife  pays  the  £900  to  J.  S.  and  marries  a  second  husband,  viz., 
the  defendant  Bargeman ;  the  two  eldest  daughters  die  under  age  and 
unmarried ;  the  youngest  daughter  attains  twenty-one ;  and  the  ques- 
tion being,  whether  she  was  entitled  to  all,  or  what  part  of  the  £900. 
Lord  Chancellor  [Macclesfield].  The  youngest  daughter  is 
entitled  to  the  whole  £900,  by  virtue  of  the  clause  in  the  will,  which 
says,  "if  all  the  three  daughters  shall  die  before  their  age  of  twenty- 
one  or  marriage,  then  the  wife  shall  have  the  whole  £900;"  for  this 
plainly  excludes  the  mother  from  having  the  £900  or  any  part  of  it, 
unless  these  contingencies  shall  have  happened,  and  the  share  of  £300 
apiece  did  not  vest  absolutely  in  any  of  the  three  daughters  under 
age,  so  as  to  go,  according  to  the  Statute  of  Distributions,  to  their 
representatives,  in  regard  it  was  possible  all  the  three  daughters 
might  die  before  their  ages  of  twenty-one  or  marriage,  in  which  case 
the  whole  £900  is  devised  over  to  the  mother ;  consequently  the  whole 
£900  does  now  belong  to  the  surviving  daughter  the  plaintiff. - 


1  Cross-remainders  will  not  be  raised  by  implication  in  a  deed:  Doe  d. 
Tanner  v.  Dorvell,  4  T.  R.  518  (1791). 

2  "If  tliere  is  a  devise  of  lands  to  two  or  more  as  tenants  in  common  and 
the  heirs  of  their  bodies  respectively,  followed  by  a  gift  over  in  default  of 
such  issue,  the  gift  over  takes  effect  only  in  default  of  all  such  issue  as  would 
take  under  the  antecedent  limitations,  and  therefore  cross-remainders  are  im- 
plied between  the  tenants  in  tail.  Doe  d.  Gorges  v.  Webb,  1  Taunt.  234 ; 
Powell  V.  llowells,  L.  R.  3  Q.  B.  G55 ;   Hannaford  v.  Hannaford.  L.  R.  7  Q.  B. 


Ch.  8)  DETERMINATION   OF   CLASSES  257 


CHAPTER  VIII 
DETERMINATION  OF  CLASSES 


WELD  V.  BRADBURY. 
(Court  of  Chancery,  1715.     2  Vem.  705.) 

Wickstead  Weld,  the  plaintiff's  father,  devised  his  stock  without 
doors  to  be  sold  by  his  executors,  and  after  debts  and  legacies  paid, 
the  surplus  arising  by  sale  to  be  put  out  at  interest ;  and  one  moiety  to 
be  paid  to  the  vouno-er  children  of  the  plaintiff,  living  at  his  death,  and 
the  other  moiety  to  the  children  of  T-  S.  and  J.  N. 

i\' either  I.  b.  nor  |.  N.  had  any  child  living  at  the  making  of  the 
will,  or  at  the  death  ot  the  testator. 

FeS-CTr!  [Lord  Cowper,  L.  C]  It  must  be  intended  an  execu- 
tory  devise,  and  to  be  to  such  children,  as  they,  or  either  of  them 
sTiould  at  any  tune  after  have,  and  the  children  to  take  per  capita,  and 
notper  stirpes,  tney  clamimg  in  their  own  right,  and  not  as  represent- 
ing their  parents.^ 

116;    soe  Askew  v.  Askew,  57  L.  J.  Ch.  629;    58  L.  T.  472;    36  W.  R.  620." 
Theobald  on  Wills  (7th  Ed.)  739. 

'•The  result  will  be  the  same  if  the  ?ift  over  is  in  default  of  issue  to  take 
under  the  preceding  limitations,  livins?  at  the  death  of  their  parents."  Madeu 
V.  Taylor,  45  L.  J.  Ch.  5G9.     Theobald  on  Wills  (7th  Ed.)  739. 

••It  has  been  said  that,  if  cross-remainders  are  provided  between  certain 
objects  in  certain  events,  the  implication  of  cross-remainders  between  those 
objects  in  different  events  does  not  arise;  so  that,  for  instance,  if  cross-re- 
mainders are  provided  between  the  children  of  separate  families  among  them- 
selves, cross-remainders  would  not  he  implied  between  the  children  of  one 
family  and  those  of  the  other.  Clache's  Case  (Dyer,  330),  however,  which  is 
usually  cited  on  this  point,  is  no  authority  for  any  such  proposition.  All  that 
case  decides  is,  that  cross-remainders  cannot  be  implied  in  the  face  of  an  ex- 
press limitation  over  in  a  certain  event  with  which  such  an  implication  would 
be  inconsistent.  See  the  remarks  by  Turner,  L.  J.,  in  Atkinson  v.  Barton,  3 
D.  F.  &  J.  339.  And  the  decision  in  Rabbeth  v.  Squire,  19  B.  77 ;  4  De  G.  &  J. 
406,  was  based  on  totally  different  grounds.  The  true  rule  is  laid  down  by 
Turner,  L.  J.:  'Cross-remainders  are  to  be  implied  or  not  according  to  the 
intention.  The  circiimstance  of  remainders  having  been  created  between  the 
parties  in  particular  events  is  a  circumstance  to  be  weighed  in  determining 
the  intention,  but  is  not  decisive  upon  it.'  Atkinson  v.  Barton,  3  D,  F.  &  J. 
339  (reversed  on  appeal,  but  on  different  grounds,  10  H.  L.  313).  See,  too, 
Vanderplank  v.  King,  3  Ha.  1 ;  Re  Ridge's  Trusts,  7  Ch.  665 ;  In  re  Hudson, 
Hudson  V.  Hudson,  20  Ch.  D.  406  (where  the  rules  deducible  from  the  ciises 
are  stated);  In  re  Rabbins;  Cill  v.  Worrall,  79  L.  T.  313."  Theobald  on 
Wills  (7th  Ed.)  740. 

"Cross-remainders  will  be  implied  in  a  devise  to  the  children  of  A.,  which 
carries  to  them  only  a  life  estate,  with  a  gift  over  for  want  of  such  issue  of 
A.    Ashley  v.  xVshley,  6  Sim.  35S."    Tlioobald  on  Wills  (7th  Ed.)  740. 

1  Siiine  as  to  realtv,  Shepherd  v.  Ingram,  ante,  page  97. 
4  Kales  Prop. — 17 


258  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

•   HILL  V.  CHAPMAN. 

(Court  of  Chancery,  1701.    3  Brown,  Ch.  Cas.  391.) 

The  testator,  John  Spackman,  made  his  will,  dated  15th  January, 
1785,  and  thereby  "  gave  the  residue  to  his  trustees,  the  defendants,  in. 
"trust  for  the  benefit  of  all  his  grandchildren,  by  his  daughter  Sarah, 
equally  to  be  divided  between  them,  and  laid  out  for  their  respective 
benefit"  ["as  aforesaid."]  The  testator  made  two  codicils,  to  his  will, 
and  by  the  latter,  dated  19th  November,  1785,  he  gave  annuities  to  his 
servants  to  the  amount  of  £30  a  year,  and  directed  £1000  Three  per 
cent  Bank  Annuities  to  be  set  apart  to  pay  these  annuities. 

The  plaintiffs  were  the  children  of  the  testator's  daughter,  Sarah 
Hill,  born  before  the  death  of  the  testator. 

The  defendants  were  the  trustees,  and  a  child  born  after  the  death 
of  the  testator  (but  during  the  life  of  the  annuitants),  who  was  brought 
before  the  court,  by  a  supplemental  bill. 

And  the  question  was,  whether  the  after-born  child  should  take  a 
share  of  this  £1000. 

Lord  Chance:llor  [Thurlow].  Where  a  supplemental  bill  brings 
a  new  person  or  a  new  interest  before  the  court,  it  is  open  to  the  par- 
ties to  make  any  objection  to  the  decree  that  might  have  been  made 
at  the  first  hearing. 

It  is  intelligible,  that  by  "the  children  of  A."  the  testator  means_cliil- 
dren  then  born;  if  you  go  further,  it  must  extend  to  all  possible  cliil- 
dren.  To  tie  it  up  to  the  death  of  the  testator,  is  rather  a  forced  con- 
struction. 

Where  it  is  to  one  for  life,  and  then  to  the  children,  it  shows  the 
intention  to  be  children  bom  then.  If  it  was  a  specific  legacy  to  one 
for  life,  and  then  to  be  divided,  there  could  be  no  doubt. 

If  it  were  of  a  part  to  one  for  life,  then  to  fall  into  the  residue,  and 
then  the  residue  was  ordered  to  be  divided  among  children,  the  same 
principle  would  apply;  which  must  extend  to  all  the  children:  there- 
fore, if  the  £1000  was  to  be  divided  at  the  death  of  the  surviving  an- 
nuitants, ftlnust  be  divided  among  all  then  born;  but  the  difficulry— 
here  is,  that  the  general  estate  must  be  divided  at  the  death  of  the  tes- 
tator. The  circumstance  of  taking  out  a  part  for  the  special  purpose 
does  not  seem  very  material.  If  he  says  nothing  upon  the  subject, 
upon  the  death  of  the  surviving  annuitant  it  must  sink  into  the  residue, 
which  is  divisible  at  the  testator's  death ;  and  it  is  repugnant  to  say, 
one  part  of  the  residue  shall  be  divisible  at  one  time,  and  the  other 
part  at  another. 

1  tliink  it  must  fall  into  the  residue. 

2  After  having  given  distinct  legacies  to  the  children  of  his  daughter,  Sarah 
Hill,  nominatim,  directing  the  mode  of  investment,  and  the  time  when  each 
legatee  should  have  the  possession ;  see  the  report  in  1  Ves.  Jun.  405,  and  the 
MS.  reports  of  the  judgment. — Belt's  Note. 


Ch.  8)  DETERMINATION   OF  CLASSES  259 

I  have  always  thought  that  the  case  of  Ellison  v.  Airey,  1  Vesey, 
111,  went  on  a  refinement,  and  was  beside  tlie  intention  of  the  tes- 
tator.^ 


DEVISME  V.  NIELLO. 

(Court  of  Chancery,  1782.     1  Brown  Ch.  Cas.  537.) 

Stephen  Devisme,*  having  made  his  will  in  1763,  added  a  codicil 
March  20,  1770,  which  contained  this  provision:  "I  give  and  be- 
queath a  further  sum  of  i5000  sterling,  to  purchase  stock,  and  the  in- 
terest to  be  paid  to  my  mother  Marianne  Devisme ;  at  her  death  the 
interest  to  be  paid  to  my  brother  William  Devisme ;  and  at  his  de- 
cease, to  my  godson_Ste£hen ;  at  his  decease,  if  before  he  is  of  age,  to 
be  divided  among  his  brothers  equally." 

"Sfephen  Devisme,  the  testator's  godson,  had  died,  aged  four  years, 
February  26,  1770,  before  the  making  of  the  codicil.  The  testator 
died  in  November,  1770.  Stephen  Devisme,  the  godson,  was  th^  son 
of  the  testator's  brother  William  Devisme.  Besides  Stephen,  WilHam 
Devisme  had  two  sons  who  were  living  both  at  the  date  of  the  codicil 
and  at  the  tim^TTfThe  testator's  death,  and  another  son  Andrew,  wHo 
was"5ornTn"  1778. 

^farianne,  the  testator's  mother,  died  in  1779,  and  William  Devisme 
in  1781. 

The  sum  of  iSOOO  had  been  invested  in  stock.  The  two  sons  of 
William  Devisme,  who  were  living  at  the  testator's  death,  and  had 
attained  twenty-one,  brought  this  bill,  that  their  shares  might  be 
transferred  to  them.  The  question  was,  whether  Andrew  Devisme 
was  entitled  to  share. 

Lord  Chancellor  [Thurlow]  was  of  opinion,  that  he  was  obliged 
to  say  the  words  ijijhe. bequest  of  iSOOO  to  brothers  of  Stephen,  were 
not  confined_to  those  who  were  his  brothers  at  the  time  of  making 
the  codicil ;  that  the  testator  must  have  had  in  contemplation  other 
sons  coming  into  being;  that  the  intention  of  the  testator  appeared 
to  be  to  make  an  aggregate  description  of  a  part  of  the  family  of 
William,  by  the  name  of  brothers  of  Stephen,  as  if  he  had  used  the 
words  male  children  of  William,  that  he  made  use  of  the  word  broth- 
ers merely  by  relation  to  the  antecedent,  the  name  of  Stephen  used  in 
the  former  part  of  the  bequest,  and  that  he  could  not  otherwise  have 

8  In  Hasrger  v.  Payne,  23  Beav.  474  (1S57),  it  was  held  that  where  the  gift 
was  of  a  residue  to  a  class,  and  part  of  the  residue  consisted  of  a  reversion, 
yet  the  class  was  ascertained  and  determined  for  the  whole  residue  when  the 
time  came  for  the  distribution  of  the  residue  gcenerally,  and  not  from  time  to 
time  as  the  reversion  fell  into  possession  and  l^eeame  distributable. 

4  Tlie  following  statement  is  abbreviated  from  the  report,  and  one  of  the 
points  is  omitted. 


260  CONSTRUCTION   OF   LIMITATIONS  (Part  2 

described  the  sons  of  Williarn  but  by  a  circumlocution ;  he  therefore 
declared  that  Andrew,  bcir.c;-  born  before  the  time  of  distribution  of 
the  fund,  was  entitled  to  a  share  of  the  £5000.^ 


AYTON  V.  AYTON. 
(Court  of  Chancery,  17S7.    1  Cox,  327.) 

George  Lee,  by  his  will  of  the  10th  of  October,  1762,  "gave  unto 
his  wife  Mary  Lee,  the  whole  rest,  residue,  and  remainder  of  all  his 
stockTgoverrtiiient  securities,  money,  and  estates  real  arid  personal, 
for  her  life  and  no  longer.  Upon  her  decease  he  gave  and  bequeathed 
them  to  the  children  of  Mr.  John  Ayton  and  his  wife  Jane,  to  be 
equally  divided''ambngst  them  the  said  fane~Ayton's  children^and  iiot 
to  aiiy  children  by  another  marriage  of  either  party?" 

At  theTim^~crf~ttle  death  ot  the  testator  and  his  widow  Mary,  the 
petitioners  John  and  SusaniTSii  AyioiTpvvere  the  only'"chi!clren"of~John 
and  Jane  Ayton,  but  ajter  tITe  death  of  the  widow  they  had  three  more 
children,  Hannah,  Jane,  and  Elizabeth. 

By  the  decree  made  in  tins  cause~^y  the  jNIaster  of  the  Rolls  on  the 
5th  of  December,  1765,  his  Honor  declared,  that  according  to  the 
words  of  the  will,  the  testator  meant  to  comprise  not  only  such  of  the 
children  of  John  and  Jane  Ayton  as  were  living  at  the  time  of  the 
making  the  will,  and  at  the  testator's  death,  but  also  all  the  children 
there  should  be  of  such  marriage,  and  gave  directions  for  applying 
the  fund  for  benefit  of  the  petitioners,  "and  any  other  child  or  chil- 
dren_ofJhe_said_Iohn  andjane  Ayton,  as  shall  be  living  at  the  time 
of  the  death  of  Ayton  an^his^wife.  or  either  ot  tliem." 

TlTFpetitioners  now  applied  to  have  the  cause  reheard,  complaining 
of  the  decree  being  erroneous  in  extending  the  construction  of  the 
words  to  children  born  after  the  death  of  the  widow  Mary  Lee. 

Masti;r  of  the  Rolls  [Sir  Lloyd  Kenyon].  This  certainly  is  a 
question  of  construction,  viz.  whether  by  the  words  the  testator  has 
made  use  of,  he  meant  to  comprise  one  class  of  children  or  another; 
but  in  this,  as  in  many  other  cases,  there  are  technical  rules  of  con- 
struction, which  are  as  binding  on  the  court  as  rules  of  law  in  other 
cases.  The  rule  of  construction  applicable  to  the  present  case  is  set- 
tled, and  settled  most  conveniently  for  the  parties,  by  the  case  of  El- 
lison v.  Airey,  1  Ves.  111.    So  many  children  as  come_j.n  esse  before 

5  It  makes  no  difference  that  the  life  interest  is  not  created  by  the  testator. 
Walker  v.  Shore,  !•")  Ves.  122. 

In  accord  with  the  principal  case:  Stiles  v.  Cummings,  122  Ga.  635,  50  S. 
E.  484;    Hubbird  v.  Coin,  137  Fed.  822,  70  C.  C.  A.  320  (real  estate). 

Per  Buller,  J.,  in  Doe  d.  Comberbach  v,  Perryn,  3  T.  R.  484,  495  (17S9): 
"Where  the  estate  is  limited  to  a  number  of  children,  it  shall  vest  in  the 
first,  and  afterwards  open  for  the  benefit  of  those  who  shall  be  born  at  a 
subsequent  period."     See  Gray,  Perpetuities,  §  110. 


Ch,  8)  DETERMINATION  OF  CLASSES  261 

thetimc  when  the  fund  is  distributable  shall  be  comprehended,  and 
nrT  rriorej__tlxe  vesting  is  not~tonje  suspended  till  other  children  are 
born,  to  take  away  from  the  shares~of  the  form££  There  are  many 
other  cases  to  this  point.  Roberts  v.  Higham,  12th  July,  1779;  Con- 
grave  V.  Congrave,  March,  1781;  Bartlett  v.  Lynch,  26  May,  1757; 
Baldwin  v.  Karver,  January,  1774,  Cowp.  309,  Doug.  503 ;  Isaacs  v. 
Isaacs,  December,  1768;  Devisme  v.  Mello,  July,  1782.  The  general 
words  w'ill  extend  beyond  children  in  being;  for  it  will  take  in  any 
child  born  before  the  remainder  takes  effect,  and  therefore  so  far  I 
shSTTcertainly  goin  this  case;  but  the  decree  in  1765  goes  further, 
and  extends  |t  to  all  the  children  of  the  marriage,  which  is  a  cmistrpc- 
tion  that  would_  tje'^attendedwith  very  great  inconveniences ;    and   I 


canfTot  seesufficient  in  the  words  confiningTReTDequest  to  the  children 
of  the  present  marriage  to  break  in  upon  the  rule.  I  must  therefore 
reverse  the  decree,  and  declare  my  opinion,  that  in  the  events  which 
have  happened  the  absolute  interest  in  thej;esidue  vested  injhe  children 
born  before  the  death  ot  Mary  LeeTand  not  in  the  children  born  after- 
wards?^ 


MIDDLETON  v.  MESSENGER. 

(Court  of  Chancery,  1799.    5  Yes.  Jr.  136.) 

John  Messenger  by  his  will,  dated  the  17th  of  March,  1785,  after 
directing  his  debts  to  be  discharged,  proceeded  thus: 

"Item,  I  give  and  bequeath  unto  my  well-beloved  wife  Lydia  Mes- 
senger all  the  interests  of  my  money  arising  from  the  3  per  cent.  Con- 
solidated  funds,  "and  also  the  profits  arising  from  all  my  estates  w^iat- 
soever,  and  the  use  of  all  mv  household  furniture,  during  the  term  of 
heiHiatural  life;  and  at  her  decease  I  give  to  my  daughter-in-law  Ann 
Little  the  interest  arising  from  £1500  for  her  sole  use  during  her  nat- 
ural life;  but  to  stand  in  my  name  deceased;  and  if  any  misfortune 
by  sickness  or  lameness  should  attend  the  said  Ann  Little,  that  she 
may  at  any  time  hereafter  be  rendered  incapable  of  going  to  receive 
her  interest  money,  my  will  is,  that  she  appoint  by  letter  of  attorney  a 
person  to  receive  the  same :  Item,  I  give  and  bequeath  unto  my  sister 
O'Brien  and  to  my  sister  Charlewnnd  ten  guineas  anniialb:-^£ach,  be- 
ing the  interest  of  i700.,  to  stand  in  my  name  deceased:  The  remaiii- 
der  of  money  in  the  funds  and  all  my  estates  of  every  kind  or  nature 
whatsoever  to  be  sola  by  a  tair  auction,  and  the  sums  ot  money  arising 
thei'efi'om  to  be  eqilfilly  divided  among  brothers'  and  sisters'  children 
(Susan  L'harlewood  excepted)  to  whom  1  bequeath  one  shilling." 

6  Theobald  ou  Wills  (7th  Ed.)  p.  807:  "If  no  children  are  born  before  the 
death  of  the  tenant  for  life  all  afterborn  ehildren  are  admitted.  Chapman  v. 
Blissett,  Ca.  t.  Talb.  145;  Wyndham  v.  Wyndbam.  3  B.  C.  C.  5S.  But  this 
rule  does  not  apply,  if  there  is  a  clear  intention,  that  distribution  is  to  be 
made  once  for  all  when  the  fund  falls  into  possession.  Godfrey  v.  Davis,  6 
Ves.  43,  explained  in  Conduitt  v.  Soane,  4  Jur.  N.  S.  502." 


'262  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

He  then  gave  some  mourning  rings,  and  to  John  IMiddleton  and 
George  Odel  ten  guineas  each ;   and  he  appointed  them  executors. 

The  testator  afterwards  made  the  following  codicil:  "As  the  lega- 
tees diethe  benefit  of  the  interest  moneysto  go  into  the  family~ot  riTy^ 
brothers^~and  sisters'  children  then  survivmg  equal  share  and  share 
alike." 

The  testator  died  upon  the  3d  of  June,  1786.  Besides  stock  and 
household  furniture  he  was  possessed  of  leasehold  estates.  His  widow 
received  the  interest  and  dividends  of  his  3  per  cent.  Annuities  and  the 
profits  arising  from  all  his  estates,  and  had  the  use  of  all  his  house- 
hold furniture,  during  her  life.  She  died  upon  the  12th  of  May,  1795. 
The  annuitants  named  in  the  wnW  survived  her. 

The  bill  was  filed  by  the  executors  to  have  the  accounts  taken,  and 
the  claims  of  the  parties  ascertained;  and  by  a  decree  made  at  the 
Rolls  upon  the  12th  of  December,  1786,  the  accounts  were  directed; 
and  an  inquiry,  who  w^ere  the  brothers  and  sisters  of  the  testator; 
whether  they  had  any  and  what  children  living  at  the  time  of  his  death ; 
if  any  were  dead,  who  were  their  personal  representatives ;  and  wheth- 
er any  of  them  (except  Susan  Charlewood),  were  living  at  the  death 
of  the  testator's  widow. 

The  Master's  report  specified  the  brothers  and  three  sisters  of  the 
testator;  and  stated,  that  several  of  their  children  were  living  at  the 
testat(Trs__death ;  and  somp  r)T~them  died  before  the  deatti  ot  his 
widowl     None  were  bom  after  the  testator's  death. 

By  anotheT^decree,  pronounced  upon  the  l6th  of  February,  1798, 
it  was  directed,  that  £1500.  3  per  cent.  Consolidated  Bank  Annuities, 
part  of  i3350.  standing  in  the  name  of  the  testator,  should  be  carried 
to  the  account  of  the  Defendant  Ann  Little,  and  the  interest  to  be  paid 
to  her  for  her  life;  and  it  was  declared  that  upon  her  death  the  said 
£1500.  would  belong  to  such  of  the  children  of  the  testator's  brothers 
and  sisters  (except  Susan  Charlewood)  as  should  be  living  at  the  death 
of  Ann  Little.  The  decree  farther  directed,  that  £700.,  other  part 
thereof,  should  be  carried  over  in  manner  following :  viz.  £350.  to 
the  account  of  the  testator's  sister,  the  Defendant  Sarah  Clempson  (for- 
merly O'Brien) ;  and  the  interest  thereof  should  be  paid  to  her  for 
life;  and  £350.,  the  other  moiety,  to  the  account  of  his  sister  Ann 
Charlewood;  and  the  interest  thereof  be  paid  to  her  for  life:  and  it 
was  declared,  that  the  said  two  sums  would  belong  to  such  of  the  chil- 
dren of  the  testator's  brothers  and  sisters  (except  Susan  Charlew^ood) 
as  should  be  living  at  the  respective  deaths  of  Sarah  Clempson  and 
Anne  Charlewood.  Some  inquiries  were  directed  as  to  James  Mes- 
senger, a  brother  of  the  testator;  who  went  to  sea  in  1785;  and  has 
not  since  been  heard  of.  Advertisements  were  published  for  his  chil- 
dren :  but  none  came  in. 

The  cause  coming  on  for  farther  directions,  the  question  was,  wjiethj 
er^iegeneral  residue  belonged  exclusively  to  the  chjldren  of  the  tes- 
tator's bToIherrand  sisleis  (except  Susan  Charlewood),  who  were  liy- 


Ch.  8)  DETERMINATION   OF   CLASSES  263 

ing  at  the  death  of  the  widow :  or  whether  children,  who  died  between 
th"e~deatB  of  the  testator  and  the  death  of  his  widow^were  entitled  with 
the  others.  The  Counsel  tor  the  Flamtitts  were  dTrected  by  the  Court 
to^support  the  point  in  favor  of  all  the  children  living  at  the  death  of 
the  testator. 

Master  of  the  Rolls  [Sir  Richard  Pepper  Ardex].  I  have 
looked  over  this  will  with  much  attention ;  and  I  do  not  say,  I  have 
not  some  doubt  upon  it ;  and  that  I  have  not  in  some  degree  changed 
my  opinion  in  the  consideration  of  the  question.  But  upon  the  whole 
will  taken  together  with  the  codicil  I  am  of  opinion,  the  codicil  upon 
the  true  construction  is  not  explanatory,  hni-  restnrtivp ;  a  distribution 
olTly  of  so  much  as  had  by  theTvill  been  appropriated;  the  interest  of 
which  he  had  given  in  different  proportions  to  Ann  Little,  Sarah 
Clempson,  and  Anne  Charlewood.  By  the  will  making  no  farther  dis- 
position of  the  il500.  and  i/OO.  so  appropriated,  which  are  still  to 
stand  in  his  name,  he  proceeds  to  dispose  of  the  remainder  of  his 
money  in  the  funds  and  all  his  other  property  after  those  appropria- 
tions. I  understand,  he  had  several  leasehold  estates.  It  appears  to 
me  upon  the  face  of  the  will,  and  according  to  the  construction  put 
upon  words  of  division  at  the  deaths  of  tenants  for  life  and  the  au- 
thority of  De  Visme  v.  Mello  (1  Bro.  C.  C.  537  [Am.  Ed.  1844,  537- 
542,  and  notes]  ;  see  the  cases  upon  this  subject  collected  and  classed 
by  Mr.  Fonblanq.  Treat.  Eq.  vol.  ii,  346,  and  by  IMr.  Sanders,  1  Atk, 
122,  in  a  note  upon  Heathe  v.  Heathe ;  see  also  Spencer  v.  Bullock, 
Taylor  v,  Langford,  Malim  v.  Barker,  ante,  vol.  ii,  687;  iii.  119,  151, 
and  the  note  ante,  i.  408),  that  the  remainder  of  his  money  in  the 
funds  and  the  produce  of  all  his  other  estates,  when  sold,  were  divisi- 
ble  among  all  the  cl2ildren__Ql_his  brothers  and  sisters,  except  Susan 
Charlewood.  liyingarhis  own  death,  and_such,  if_anY,  as  might  be  bom 
•hefnfpTlTplTpafvrnf  hi^wrfp^and  the  7epresentatives  of  such  as  should 
be  deadlh  the  lite  ot  TTiTwife^  That  is  fully  established  in  that  case ; 
in  which  every~circumstance  contained  in  this  occurs.  It  is  clear  upon 
that  case,  to  which  I  perfectly  subscribe,  that  under  such  a  disposition 
the  fund  is  divisible  among  such  of  the  objects,  as  are  living  at  the 
testator's  death,  and  such  as  shall  be  born,  before  the  fund  is  dis- 
tributable ;  and  that  they  are  vested  interests.  If  that  is  the  true  con- 
struction of  this  will,  and  it  is  clearly  so,  if  De  Visme  v.  niello  is  right, 
the  question  is,  to  what  the  codicil  relates ;  and  it  was  contended,  that 
it  related,  not  only  to  the  sums  appropriated  to  the  annuitants,  but 
that  it  was  explanatorv  of  the  words  the  testator  used,  when  speaking 
of  the  remainder  of  his  money  in  the  tunds,  alter  that  appropriation , 
and"aTrhis  other  estates;  to  restrain  the  disposition,  as  it  does,  as  far 
as  it  relates  to  the  subject  oTTt,  to  children  then  surviving!  But  upon 
the  true  construction  of  this  codicil  I  am  of  opinion,  tt  was  not  to 
relate  to  any  thing  but  the  interest  undisposed  of  by  the  will :  and  tTiat 
the  testator  did  not  mean  to  disturb  what  was  given  by  the  will,  but  to 


2G4  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

dispose  of  \vhat  had  been  left  undisposed  of,  the  sums  of  £1500.  and 
£700.  after  the  deaths  of  the  annuitants. 

Declare,  that  the  residue  of  the  testator's  personal  estate,  after  the 
appropriation  of  il500.  and  £700.  3  per  cent.,  &c.  for  satisfaction  of 
the  annuities  given  by  the  will  to  Ann  Little,  Sarah  Clempson,  and 
Ann  Charlewood,  is  distributable  among  the  child^eii  of_jhe  testator's 
broth,er_and  sisters  (except  SusanCharlewood)  living  at  his  decease, 
and  the  representatives  ofTuchas  died  m  the  life" of  his  wite."^ 


GILMORE  V.  SEVERN. 

(Court  of  Chancery,  17S5.     1  Brown,  Ch.  Cas.  582.) 

Testator  gave  to  the  children  of  his  sister  Jane  Gilmore,  wife  of 
Thomas  Gilmore,  T350  with  interest  for  the  same,  to  be  paid  them 
respectively,  their  equal  shares  and  proportions  as  they  should  respec- 
tively attain  twenty-one;  and_m__case  any  of  them  should  die  under 
twenty-one,  then  their  shares"should  go  to  the  survivors  andsurviA-oT 

At  the  death  of  the  testator,  Jane  Gilmore  had  twoJHjildrenJ^the 
plaintiffs  ;  afterwardTsTTe  haH_another  child :  the  plaintiffs  were  both 
infants;    and  the  Court  ISiiTXloyd  Ksnyon]  was  of  opinion,  that 

7  Accord:     Holland  v.  Wood  (1870)  L.  R.  11  Eq.  91  (devise  of  real  estate). 

But  see  Drury  v.  Drury,  271  111.  336,  111  N.  E.  140  (1916) ;  Satterfield  v. 
Mayes.  11  Humph.  (Teuu.)  58  (personalty) ;  Cole  v.  Creyon,  1  Hill  Eq.  (S.  C.) 
311,  322,  26  Am,  Dec.  208  (personalty) ;  Conner  v.  Johnson,  2  Hill  Eq.  (S.  C.) 
41  (real  estate) ;  Robertson  v.  Garrett,  72  Tex.  372,  10  S.  W.  96  (real  estate) ; 
Teed  v.  Morton,  60  N.  Y.  502.  506  (personalty ;  the  court  suggests  difference 
between  realty  and  personalty) ;  Matter  of  Allen,  151  N.  Y.  243,  247.  45  N.  E. 
554  (semble ;  personalty) ;  Hadcox  v.  Cody,  75  Misc.  Rep.  569,  135  N.  Y.  Supp. 
861  (ijersonalty). 

In  Cole  Y.  Creyon,  supra,  the  court,  by  Hari^er,  J.,  said:  "I^think  it.  how- 
ever, the  mdi'g  liatuVal  import  of  the  words,  when  the  bequest  i's~fo'cnii(iren-?\t 
tlie  death  ot  the  tarumt  for  lileS  ttUlt  those  who  theh  answer  the  d^-Jc'rlptmn 
ofchildren,  sbouUl  be  nu';Tnt  The  intenta^n  too,  will,  1  tuiuK,  in  general  be 
best  conipiied  with  Dy  tnis  construction.  When  property  is  thus  given  to 
children,  and  one  dies  before  the  period  of  distribution,  it  will  commoidy 
happen  that  his  brothers  and  sisters  will  be  his  next  of  kin,  and  then  it  will 
be  immaterial  whether  they  take  as  legatees  or  as  next  of  kin  of  the  deceas- 
ed. But  it  may  haiipen  that  there  will  be  a  father  or  mother  to  take  along 
with  them ;  and  when  the  testator  has  passed  over  the  parent  and  given 
the  whole  to  the  children,  it  would  seem  to  defeat  his  intention  that  the 
parent  should  at  the  period  of  distribution,  take  any  portion  as  next  of  kin. 
When  the  devise  is  of  real  estate  in  England,  one  brother  would  take  the 
whole  of  the  deceased's  portion  as  heir-at-law ;  and  this  would  seem  to  defeat 
the  intention  that  all  the  children  should  take  ef[ually.  There  would  be  rea- 
son for  making  a  different  construction,  and  probably  a  different  one  ouglit 
to  be  made,  wiien  the  child  dying  has  left  children ;  and  this  also  to  effectu- 
ate the  intention ;  for  it  cannot  be  supposed  that  the  testator  intended  the 
object  of  his  bounty  not  to  be  capable  of  transmitting  to  his  children  so  as  to 
provide  for  them." 

Compare,  however,  with  the  result  reached  in  O'Hare  v.  Johnston,  273  111. 
458,  113  N.  E.  127. 


Ch.  8)  DETERMINATION   OF  CLASSES  2G5 

the  ynirnFresj_chilcl.  beinff  born  during  the  infancy  of  the  other  two, 
though  after  the  death  of  the  testator.  might_be  entitled  to  a  share. 

As  none  were  entitled  to  a  veste'd^interest^the  court  ordered  the 
money  to  be  paid  into  the  bank.^ 


ANDREWS  V.  PARTINGTON. 

(Court  of  Chancery,  1791.     3  Brown,  Ch.  Cas.  401.) 

Robert  Andrews,  grandfather  of  the  plaintiff,  made  his  will  bearing 
date  19th  August,  1763,  and  thereby  gave  to  the  defendants,  Partington 
and  Andrews  (the  father  of  the  plaintiffs),  all  his  real  and  personal 
estates  (subject  to  debts) :  in  the  first  place,  to  pay  taxes,  repairs,  and 
for  the  renewal  of  leases ;  and  out  of  the  rents,  &c.,  to  pay  his  wife, 
Margaret,  £800  a  year,  until  his  daughters,  Diana  and  Catherine,  should 
marry;  and  after  their  marriages,  £600  a  year  for  life;  and  subject 
and  without  prejudice  thereto,  out  of  the  rents  and  profits,  to  raise 
£3000,  as  soon  as  might  conveniently  be,  after  his  decease,  to  be  paid 
in  manner  following:  i.  e.,  £2000  te  his  daughter  Diana,  and  £1000 
to  his  daughter  Catherine,  accumulating  the  surplus  rents  and  profits 
during  the  life  of  his  wife;  and,  after  the  decease  of  his  wife,  the 
further  sum  of  £7000  to  be  paid  to  his  daughters,  at  such  times,  and  in 
such  proportions,  as  therein  mentioned;  i.  e.  £3000  to  Diana,  on  the 
day  of  her  marriage,  and  £4000  to  Catherine,  on  the  day  of  her  marriage, 
provided  such  marriages  should  happen  after  the  decease  of  his  wife ; 
and  in  case  either  of  his  daughters  should  marry  in  the  lifetime  of  the 
wife,  then  her  share  to  be  paid  her  within  six  months  after  the  death 
of  the  \Yif e ;  the  shares  of  the  daughters,  after  decease  of  the  wife, 
to  bear  interest  at  four  per  cent ;  and  in  case  his  said  daughters,  or 
either  of  them,  should  die  unmarried,  then,  upon  trust,  to  pay  the 
share  or  shares  of  her  or  them  so  dying  in  the  manner  following:  i.  e., 
£2000,  part  of  the  £3000  share  of  Diana,  to  all  and  every  the  child  and 
children  of  his  son  Robert  Andrews,  equally  to  be  divided  between 
and  among  them ;  if  more  than  one,  share  and  share  alike ;  and  if 
but  one,  then  to  such  only  child ;  the  parts  or  shares  of  such  child 
or  children  to  be  paid  in  manner  following :  i.  e.,  the  daughter's  shares 
at  her  or  their  age  or  ages  of  twenty-one,  or  day  or  days  of  marriage, 
which  should  first  happen ;    and  the  son's  share  or  shares,  at  his  or 


8  See,  also,  In  re  Emmet's  Estate,  13  Cb.  D.  484  (ISSO).  Theobald  on  \Tills 
(7th  Ed.)  p.  309:  "Maintenance  out  of  the  shares  or  presuniptive  shares  of 
children  will  not  extend  the  class.  Gimblett  v.  Purton,  12  Eq.  427.  But  if 
maintenance  and  advancement  are  continued  beyond  the  time  when  the  eld- 
est child  attains  twenty-one,  if,  for  instance,  advancement  is  directed  out  of 
vested  and  presumptive  shares,  all  children  will  be  let  in.  Iredell  v.  Iredell. 
25  B.  485;  Bateman  v.  Gray,  6  Eq.  215;  In  re  Courtenay;  Pearce  v.  Fox- 
well,  74  L.  J.  Ch.  654." 


266  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

their  age  or  ages  of  twenty-one;  or  to  be  sooner  advanced,  for  his 
Or  their  preferment  in  the  world,  or  benefit,  if  the  trustees,  or  the 
survivors  of  them,  &c.,  should  think  fit,  with  survivorship  among  the 
children,  the  dividends  and  interest  thereof  to  be  paid  by  the  trustees, 
toward  the  maintenance  and  education  of  such  child  and  children, 
till  their  shares  become  payable,  in  proportion  to  their  respective 
shares  and  interests  therein;  and  in  case  all  the  children  should  die 
before  their  shares  became  payable,  then  the  i2000  to  be  paid  to  his 
son  Robert  Andrews.  The  testator  also  declared  the  uses  as  to  the  re- 
maining ilOOO  given  to  his  said  daughter  Diana,  for  the  benefit  of  the 
children  of  his  daughter  Margaret  Ashcroft;  and  with  respect  to 
i2000  of  the  £4000,  his  daughter  Catherine's  share,  he  also  gave  it  in 
the  same  manner  with  the  first  £2000  given  to  his  daughter  Diana; 
and  the  other  £2000,  part  thereof,  he  gave  among  the  children  of  his 
daughter  Margaret  Ashcroft,  in  the  manner  therein  mentioned;  and 
he  gave  the  residue  of  his  estate,  after  the  death  of  his  wife,  after 
payment  of  £1000,  to  his  son  Robert  Andrews,  and  three  annuities, 
to  persons  since  dead,  to  thechildren  of  defendant,  Robert  Andrews, 
in  the  same  manner  with  the  £2000  given  in  the  first  place  toTDianaT" 

The  testator  died  27th  August,  1753,  and  his  wife  and  defendant 
Partington,  proved  his  will. 

The  widow  died  23d  May,  1774,  leaving  defendant  Partington  the 
surviving  executor. 

Catherine  Andrews,  one  of  the  testator's  daughters,  intermarried 
with  John  Neale  Pleydell  Nott,  Esq.,  and  £4000  part  of  the  £7000 
were,  after  decease  of  the  mother,  paid  to  the  trustees  named  in  the 
settlement  upon  the  marriage,  together  with  £1100  arising  from  savings, 
and  from  another  fund. 

The  remaining  £3000  was  never  raised ;  Diana,  the  other  daughter, 
never  having  married ;  but  interest  for  the  same  has  been  paid  to  her 
from  the  death  of  the  widow. 

Sarah  Andrews,  wife  of  the  defendant,  Robert  Andrews,  son  to  the 
testator,  died  in  April,  1781,  and  the  plaintiffs  are  the  children  of  that 
marriage,  six  of  whom  had  attained  their  ages  of  twenty-one,  previous 
to  the  filing  of  the  bill,  and  the  six  others  were  minors. 

The  bill  prayed  (among  other  things)  that  the  freehold  and  leasehold 
estates  might  be  sold,  and  six  twelfth  parts  of  the  produce,  and  also 
of  the  residue,  and  accumulation,  might  be  paid  to  the  six  plaintiffs, 
who  had  attained  twenty-one,  and  the  remaining  six  twelfth  parts  be 
placed  out  at  interest  for  the  benefit  of  such  of  the  plaintiffs  as  are 
infants,  &c. 

The  cause  came  on  to  be  heard  1st  March,  1790,  when  the  only 
question  decided  was,  relative  to  the  maintenance  (vide  3  Bro.  C.  C. 
60),  and  it  was  referred  to  the  master,  to  inquire  (inter  alia)  what  chil- 
dren the  defendant  Andrews  then  had,  and  had  had,  and  at  what  times 
they  were  respectively  born,  and  in  case  any  of  them  were  dead,  then 
when  they  respectively  died. 


Ch,  8)  DETERMINATION  OF  CLASSES  2G7 

July  11,  1791,  the  master  made  his  report,  and  thereby  stated,  that 
the  defendant,  Robert  Andrews,  had  issue  by  his  late  wife,  the  follow- 
ing children,  and  no  more ;  plaintifif  Elizabeth,  born  1761,  Robert,  1762, 
Catherine,  1764,  George,  1765,  Charlotte,  1766,  Sarah,  1767,  Caesar, 
1770,  Hugh,  1772,  Henry,  1773,  Frederick,  1775,  Marianne,  1777,  Au- 
gustus, 1779;  and  that,  besides  the  above-mentioned  children,  the  de- 
fendant, Andrews,  had  an  issue  by  his  said  wife,  the  following  chil- 
dren, who  were  dead;  Sarah,  born  1760,  died  1763;  John,  born  1769, 
died  1783;   and  Charles,  born  1776,  and  died  in  the  same  year. 

And  now  the  cause  coming  on  for  further  directions  upon  the  mas- 
ter's report,  the  question  was,  what  children  should  take  under  the  be- 
quest of  the  residue?  1st.  Whether  all  such  children  as  the  defendant 
Robert  should  have  at  the  time  of  his  death?  2d.  Whether  it  should 
be  confined  to  such  as  were  living  at  the  death  of  Margaret,  the  testa- 
tor's widow?  Or,  3d.  To  such  children  as  were  living  at  the  time  the 
eldest  child  attained  the  age  of  twenty-one? 

Lord  Chance:llor  [Thurlow]  said  where  a  time  of  payment  was 
pointed  out,  as  where  a  legacy  is  given  to  all  the  children  of  A.,  when 
they  shall  attain  twenty-one,  it  was  too  late  to  say,  that  the  time  so 
pointed  out  shall  [not]  regulate  among  what  children  the  distribution 
shatTbeTiTacIe^  rt~must  be  among  the  children  in  esse  at  the  time^th e 
eldest  attains  sucli  age^  He~s"aid  he  ha'd'o'tten  wondered  how  it  came 
to'  be  so  decided,  there  being  no  greater  inconvenience  in  the  case  of 
a  devise  than  in  that  of  a  marriage  settlement,  where  nobody  doubts 
that  the  same  expression  means  all  the  children. 


DAVIDSON  V.  DALLAS. 

(Court  of  Cliancery,  ISOS.    14  Ves.  576.) 

Alexander  Davidson  by  his  will  bequeathed  to  the  children  of  his 
brother  Robert  Davidson  £3000  to  be  equally  divided  among  them  ;  and 
if  either  of  diem  should  die^fore  the  age  of  twenty-one  years  their 
share  to  go  to  the  survivors^ 

The  testator  died  in  1/92.  The  master's  report  stated,  that  at  the 
death  of  the  testator_jliere  were  six  children  of  his  brother,  the  eldest 
oT'wliom  w^as  at  the  date  of  the  report  of  the  age  of  fourteen,  and  two 
more  children  were  born  since  the  repo£t.  A  decree  had  been  taken, 
without  argument,  declaring  that  the  two  children  of  Robert  Davidson, 
born  after  the  death  of  the  testator,  and  all  the  other  children  to  be 
born,  until  the  eldest  child  should  attain  the  age  of  twenty-one,  were 
equally  entitled  with  the  children  who  were  born  before  the  testator's 
death.    The  cause  came  on  upon  an  appeal  from  the  decree. 

Thi;  Lord  Chancei^lor  [Lord  Eldon].  This  legacy  is  ajvested 
interest,  subject  to  be  devested  bv  the  death  of  any  of  the  children 
undeTjIiFage  of  twenty-one,  leaving  another  child  surviving.     It  is  an 


268  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

immediate  legacy  to  the  children,  living  at  the  testator's  death ;  in 
whom  it  vested  at  that  time ;  equally  to  be  divided  among  them ;  with 
a  limitation  over,  if  either  of  them  should  die  before  the  age  of  twenty- 
one,  to  the  survivors.  That  period  of  division  and  vesting  is  the  death 
of  the  testator ;  and  that,  which  is  to  be  divided  and~vesfed  at  that 
time,  may  in  certain  events  go  over  to  some  of  those,  among  whom  it 
was  to  be  divided,  and  in  whom  it  vested,  at  the  testator's  death.  The 
difficulty  that  has  always  been  felt  to  apply  the  term  "survivors"  to 
those,  who  may  not  be  alive  at  the  time  of  the  distribution  taking  place, 
has  been  met  by  presuming,  that  the  testator  intended  persons,  not 
then  living,  but  who  might  come  into  existence  before  the  distribution; 
construing  the  word  "survivors"  as  "others ;"  to  take  in  all  who  should 
come  into  existence  before  that  period.  There  is  nothing  in  this  will, 
indicating  a  general  intention,  upon  which  the  forced  construction  of 
the  term  "survivors"  has  been  adopted.  These  words  must  therefore 
have  their  natural  meaning. 

The  decree  declared,  that  those  children  only  of  the  testator's  brother. 
who  were  living  at  tlie  death  of  the  testator,  were  entitled] 


OPPENHEIM  V.  HENRY. 

(Court  of  Cliancei-y,  1853.     10  Hare,  441.) 

The  principal  question  arose  on  the  efifect  of  the  following  bequest 
of  the  residuary  estate  of  the  testator: 

"I  desire  and  will  the  remaining  residue  to  be  appropriated  in  man- 
ner following, — say  as  soon  as  conveniently  can  be  after  my  decease, 
to  be  turned  into  cash,  and  brought  into  the  funds,  stock  £3  per  cent. 
Consols,  in  the  names  of  my  executors  hereinafter  named,  and  to  be 
held  by  them  in  trust  for  all  my  grandchildren,  to  be  divided  equally 
among  them_at  the  end  or  expiration  of  twenty  years  after  my  decease, 
and  the  interest  by  the  purchase  oFi3  per  cent.  _rr»ngr.1g  gtnrlr  tn  ar- 
cumulate  till  that  time." 

The  Vice-ChaxcEllor  [Sir  W.  Page  Wood],  with  reference  to 
the  argument  for  confining  the  gift  to  grandchildren  living  at  the  ex- 
piration of  the  twenty  years,  said,  that  the  cases  which  were  referred 
to  in  support  of  the  argument  for  postponing  the  gift  until  that  time, 
were  cases  in  which  the  gift  was  connected  with  the  period  of  division. 
The  strongest  cases  in  this  form  were,  perhaps,  those  in  which  the  gift 
was  "to  children  on  attaining  a  certain  age."  There,  no  doubt,  the  gift 
was  coupled  with  the  period  of  distribution.  In  some  of  those  cases  it 
might  possibly  have  been  contended,  that  the  existence  of  the  life  in- 
terest was  tlie  only  reason  for  postponing  the  division.  He  had  no  dif- 
ficulty in  holding,  that  a  gift  of  stock  in  trust  for  all  the  grandchildren 
of  the  testator,  to  be  divided  equally  amongst  them  at  the  period  of 
twenty  years  from  the  time  of  his  decease,  was  a  vested  interest  in  the 


Ch.  8)  DETERMINATION  OF  CLASSES  2G9 

grandchildren  of  the  testator.  The  only  question,  then,  was,  in  what 
grandchildren  the  gift  vested;  and  upon  this  he  was  clearly  of  opinion, 
that  the  f^randchildren  who  werejiving  at  the  death  of  the  testator,  and 
those  who  were  born  afterwards  before  the  period  of  distribution,  were 
entitled?  ~~ 


RINGROSE  V.  BRAMHAM. 

(Court  of  Chancery,  1794.     2  Cox,  384.) 

The  question  in  this  cause  depended  upon  the  following  clauses  in 
the  testator's  will : 

*T  also  give  to  Joseph  Ringrose's  children  £50  to  every  child  he 
hath  by  his  wife  Elizabeth,  to  bejaid  to~theiin)y  my  executors  as  thev 
shall  cmiie  of  age,  anTTtlieinterest  to  be  paid  yearly  till__they  come  of 
age  to  their  fa^er  or  mother.  I  also  give  to  Christopher  Rhodes's 
children7that  he  hath  by  his  wife  Peggy,  £50  to  every  child  when  they 
come  of  age,  and  the  interest  to  be  paid  yearly  till  they  come  of  age  to 
their  father  or  mother.  And  my  will  is,  that  my  two  executors  do 
lodge  in  Mr.  W.  Foxhall's  hands  £600,  and  £100  in  Joseph  Ringrose's 
hands  till  the  children  aforesaid  come  of  age,  and  to  receive  the  interest 
yearly,  and  to  pay  the  same  to  the  above-named  children  or  their  father 
or  mother.  And  if  any  of  the  children  should  die  before  they  are  of 
age,  then  the  legacies  shall  go  to  my  executors." 

There  were  eleven  children  of  Joseph  Ringrose  and  Christopher 
Rhodes  living  at  the'Tlrne  oT  the  making  the  will ;  thirteen  ai  the  death 
of ^he  testator ;   and  three  born  since. 

This  bill  was  tiled  by  the  sixteen  children  of  Joseph  Ringrose  and 
Christopher  Rhodes,  claiming  to  be  entitled  to  £50  apiece  under  the 
above  bequest. 

And  it  was  insisted  on  the  part  of  the  plaintiffs,  that  there  was 
nothing  to  confine  these  legacies  of  £50  to  the  children  living  at  the 
time  of  making  the  will,  or  to  those  living  at  the  death  of  the  testator ; 
that  altliough  the  testator  has  made  use  of  the  word  "hath,"  which  is 
properly  of  the  present  tense,  yet  it  is  evident  that  he  meant  thereby 
"shall  have,"  in  the  same  manner  as  he  afterwards  uses  the  word 
"come"  for  "shall  come ;"  that  the  sum  which  he  has  set  apart  for 
the  payment  of  these  legacies  does  not  tally  with  the  number  of  the 
children  living  at  any  one  of  these  periods,  and  therefore  nothing  can 
be  inferred  from  thence,  except  that  he  did  not  mean  to  confine  the 
legacies  to  the  children  living  at  the  date  of  the  will ;  that  as  the  lega- 
cies are  not  to  be  paid  to  the  respective  legatees  until  they  attain  twenty- 
one,  this  will  at  least  let  in  all  the  children  born  before  any  of  them 
arrives  at  that  age.    Gilmore  v.  Severn,  1  Bro.  Cha.  Rep.  582. 

9  But  see  Kevern  v.  Williams,  5  Sim.  171  (1S32) ;  Elliott  v.  Elliott,  12  Sim. 
27G  (1S41). 


270  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

Master  of  the  Rolls  [Sir  Richard  Pepper  Arden].  The  case 
of  Gilmore  V.  Severn  is  very  distinguishable  fromJLhis.  In  Gilmore  v. 
Severn,  a  gross  sum  of  £350  was  given  to  the  children  of  Jane  GUmore^ 
to"^  paid  to'TTieni  in  equal  shares  at  twenty-one,  and  there  was  no 
inconvenience  in  postponing  the  vesting  of  those  shares  until  some  one 
of  "ttiein-  atfatireit^hgrggg;  so  as  to  let  in  the  children  born  in  the  mean 
time,  because  there  was  nothing  to  do  but  to  set  apart  the  sum  of  i350, 
and  the  residue  of  the  testator's  personal  estate  might  be  immediately 
divided ;  for  whether  more  or  fewer  children  divided  the  ;£350,  still  they 
could  have  but  i350  amongst  them.  But  here  there  are  distinct  lega- 
cies of_i50  to  each  of  the^hildrgn,  and  therefore  if  I  am  to  let  in  all 
fHechildren  of  these  two  persons  born  at  any  future  time,  I  must  post- 
pone the  distribution  of  the  testator's  personal  estate  until  the  death  of 
Joseph  Ringrose  and  Christopher  Rhodes,  or  their  wives,  for  I  can 
ripvpi-  dividg__the^esidue  until  I  know_hQacmany  jggaQJes  of  £5Crix£-_ 
payable.  Therefore,  thougTrTperlectly  assent  to  Gilmore  v.  Severn,  it 
is^hCTf  applicable  to  this  case.  At  the  same  time  I  think  I  may  fairly 
construe  the  woi-d  "hath,"  so  as  to  make  it  speak  at  the  time  the  will 
takes  effect,  and  let  in  the  children  born  between  the  making  of  the 
will  and  the  death  of  the  testator.  His  Honor  therefore  declared  the 
thirteen  plaintiffs  only  who  were  living  at  the  death  of  the  testator, 
entitled  to  legacies  of  £50  each.^" 


STORRS  V.  BENBOW. 

(Court  of  Chancery,  1833.    2  Mylne  &  K.  46.) 

A  codicil  to  the  will  of  William  Townsend  contained  a  bequest  in 
tlie  following  words :  "Item,  I  direct  my  executors  to  pay,  by  and  out 
of  my  personal  estate  exclusively,  the  sum  of  £500  apiece  to  each  child 
that  may  be  born  to  either  of  the  children  of  either  of  my  brothers. 
lawfully  begotten,  tj)  be  paid  tojeach  of  them  on  his  or  her  attaining  the 
age  of  twenty-one  years,  without"  beneht  of  survivorship." 

The~question  was",  whether  the  plaintiff,  William  Townsend  Storrs, 
who  was  a  grandchild  of  one  of  the  testator's  brothers,  and  who  was 
born  after  the  testator's  death,  was  entitled  to  a  legacy  of  £500,  under 
this  bequest. 

The  Master  oe  the  Rolls  [Sir  John  Leach].  THis  is  an  imme- 
diate  gift  at  the  death  of  thejtestator,  and  is_confined  to  the  children 
then  living^  TEe  words  "rnay  be^orn7^rovide3~Tor  the~"Mrth  of 
children  between  tlie  making  of  the  will  and  the  deatiL  I'he  cases 
of  Sprackling  v.  Kanier,  1  Dick.  344,  and  Ririgrose  vT  Bramham, 
2  Cox,  384,  are  direct  authorities  to  this  point.     To  give  a  different 

10  If  there  are  no  children  in  existence  at  the  testator's  death,  does  the 
provision  fail?  See  Mann  v.  Thompson,  Kay,  638  (1854);  Rogers  v.  Mutch, 
10  Ch.  D.  25  (1878).'  ,^ 

/ 


Ch,  8)  DETERMINATION   OF  CLASSES  271 

meaning  to  the  words  "may  be  born,"  would  impute  to  the  testator 
the  inconvenientand  improbable  intentiQll_tliat_his_residuarv  personal 
estate"""sHouldliot  be  distributed  until  after  the  deaths  of  all  the  children 
of  either  oi 


MAINWARING  v.  BEEVOR. 

(Court  of  Chancery,  1849.    8  Hare,  44.) 

William  Carver  by  his  will,  dated  in  1835,  after  bequeathing  to  his 
trustees  all  his  shares  and  moneys  standing  in  his  name  in  divers 
stocks,  funds,  and  securities,  and  after  declaring  trusts  of  three  sev- 
eral sums  of  i30,000  consols,  for  the  benefit  of  his  widow  and  sons, 
William  James  Carver  and  James  Carver,  for  their  respective  lives, 
with  remainder  to  the  children  of  his  said  two  sons,  or  their  issue, — 
declared  that,  as  to  the  residue  of  his  consols,  his  £2>  per  cent  reduced 
stock,  his  New  iS^^  per  cent,  and  his  bank  stock,  and  all  other  the 
stocks  and  funds  or  securities  which  might  be  standing  in  his  name 
at  his  decease  (except  the  said  three  sums  of  £30,000  consols),  his  trus- 
tees should  stand  possessed  of  such  residue,  upon  trust  (after  paying  an 
annuity  of  £20  to  Alary  Scott  for  her  life),  to  pay  and  apply  such  part 
and  proportion  of  the  dividends,  interest,  and  annual  produce  of  the 
residue,  as  the  said  trustees  or  the  survivors  or  survivor  of  them  might 
in  their  or  his  discretion  deem  necessary,  for  or  towards  the  main- 
tenance and  education  of  all  and  every  of  his  grandchildren,  the  chil- 
dren of  his  said  two  sons,  William  James  Carver  and  James  Carver, 
until  they  should  severally  attain  the  age  of  twenty-one  years.  And 
the  testator  directed,  that  the  surplus  of  such  dividends,  interest,  and 
annual  produce,  which  should  not  be  wanted  and  applied  for  the  pur- 
pose last  aforesaid,  should  be  invested  by  his  trustees  in  government 
securities  (with  power  to  vary  and  transpose  the  same),  and  proceed- 
ed :  "And  when  and  as  each  of  my  said  grandchildren  shall  attain  the 
age  of  twenty-one  years,  upon  trust  that  they  my  said  trustees,  &c., 
do  and  shall,  by  the  sale  of  such  part  of  the  stocks,  funds,  and  securi- 
ties then  standing  in  their  names  or  name,  as  may  be  necessary  for 
the  purpose  raise  and  pay  to  each  of  my  said  grandchildren  so  attain- 
ing the  age  of  twenty-one  years  as  aforesaid,  the  sum  of  £2000  for 
their  own  benefit.  And  I  do  hereby  declare,  that  when  and  so  soon 
as  all  and  every  my  said  grandchildren  shall  have  attained  their  age 
r^fn-pnfy-(^^p  vpnrQ  tinpy  my  caiM  Tfustecs,  &c.,  do  and  shall  Stand 
possessed  of  the  whole  of  the  stocks,  funds,  and  securities  then  stand- 
ing in  their  names,  upon  any  of  the  trusts  of  this  my  will  (over  and 
above  the  three  several  sums  of  £30,000  £3  per  cent  consols,  hereinbe- 
fore by  me  disposed  of),  upon  trust  to  pay,  transfer,  divide,  and  make 
over  the  same  respectively,  and  the  dividends,  interest,  and  annual 
produce  thereof,  unto,  between,  and  amongst  all  and  ever}'  my  said 
grandchildren,  to  and  for  their  own  absolute  use  and  benefit  as  ten- 


'li'Z 


CONSTRUCTION   OF  LIMITATIONS  (Part  2 


ants  in  common,  and  not  as  joint  tenants.  Provided  always  and  I  do 
hereby  declare,  that  if  I  shall  have  only  one  grandchild  who  shall  live 
to  attain  the  age  of  twenty-one  years,  then  such  one  grandchild,  upon 
his  attaining  that  age,  shall  have  and  be  entitled  to  the  whole  of  the 
stocks,  funds,  and  securities,  and  the  dividends,  interest,  and  annual 
produce  thereof,  to  which  my  grandchildren,  if  more  than  one  should 
have  attained  the  age  of  twenty-one  years  would  have  become  entitled. 
And  I  do  hereby  further  declare,  that  each  of  my  grandchildren,  upon 
their  severally  attaining  the  age  of  twenty-one  years,  shall  take  vested 
interests  under  this  my  will.  Provided  also,  and  I  do  hereby  further 
declare,  that  in  case  any  or  either  of  my  grandchildren  shall  at  any 
time  during  his,  her,  or  their  minority,  go  or  be  taken  beyond  the  seas, 
for  the  purpose  of  being  or  to  be  educated  in  any  foreign  country,  or 
for  any  purpose  whatever,  and  shall  remain  beyond  the  seas  or  in  any 
foreign  country,  for  any  purpose  whatever,  more  than  three  calendar 
months  in  any  one  year,  then  and  in  every  such  case,  and  from  thence- 
forth, the  claim,  right,  and  title  of  each  and  every  such  grandchildren 
so  going  or  being  taken  beyond  the  seas  to  maintenance  and  education 
out  of  or  in  respect  of  any  moneys  or  property  to  which  they,  he,  or 
she  may  be  entitled  under  this  my  will,  shall  cease  and  determine  and 
become  forfeited ;  but  so,  nevertheless,  that  such  forfeiture  shall  not 
in  any  respect  affect  the  right  of  such  grandchild  of  grandchildren  to 
the  principal  of  such  moneys  and  propert}^  upon  his,  her,  or  their  at- 
taining the  age  or  ages  hereinbefore  mentioned  for  payment  of  the 
same." 

The  testator  died  in  1837,  leaving  his  two  sons  surviving.  William 
James,  one  of  the  sons,  had  five  children  living  at  the  testator's  death. 
James,  the  other  son,  was  unmarried.  The  youngest  of  the  five  grand- 
children attained  twenty-one  years  of  age  in  1848,  and  no  others  had 
been  born.  The  grandchildren  then  filed  their  bill  for  the  execution 
of  the  trusts  of  the  residue  of  the  stocks,  funds,  and  securities,  and  for 
a  declaration  that  they  were  entitled  to  an  immediate  transfer  of  their 
respective  shares.  Mary  Scott  the  annuitant  was  dead,  but  the  sons, 
William  James  and  James,  were  still  living. 

Vice;-Chancellor  [Sir  James  Wigram].  In  the  case  of  a  gift  to 
children  when  they  attain  twenty-one,  the  reason  of  the  rule  of  the 
court  is,  that  the  eldest  child,  on  attaining  twenty-one,  has  a  right  to 
demand  his  share,  and  that  this  right  is  inconsistent  with  a  gift  to  "all 
the  children,"  including  those  who  may  afterwards  be  born  of  the  par- 
ent named.  In  this  case  there  is  no  such  inconsistency.  Plere  there  is 
no  express  direction,  conferring  upon  the  grandchildren  the  right  now 
to  receive  their  shares,  and  no  inconsistency  would  arise  from  holding 
all  the  grandchildren  born" in  the  lifetime  of  either  of  the  parents^ 
named  in  the  will,  entitled  to  participate.  If  the  class  is  to  be  confined" 
to  the  grandchildren  ni  esse"lit  the  death  of  the  testator,  the  argument 
is  intelligible.  In  the  case  of  Elliott  v.  Elliott  [12  Sim.  276],  the  Vice- 
Chanceilor  seems  to  have  adopted  that  construction,  on  the  ground 


Ch.  8)  DETERMINATION  OF  CLASSES  273 

that  it  brought  the  bequest  within  the  rules  of  law  as  to  remoteness, 
proceeding,  I  suppose,  on  the  principle,  that  where  a  will  admits  of 
two  constructions,  that  is  to  be  preferred  which  will  render  it  valid. 
The  rules  of  construction  cannot,  however,  be  strained  to  bring  a  de- 
vise or  bequest  within  the  rules  of  law.  If  the  class  cannot  be  so  re- 
stricted in  this  case,  and  grandchildren  born  after  the  death  of  the 
testator  are  to  be  admitted,  there  does  not  appear  to  be  any  reason 
for  excluding  a  grandchild,  born  or  to  be  born  in  the  lifetime  of  ei- 
ther of  the  testator's  sons. 

VicE-ChancEllor.  Where  a  testator  has  given  two  inconsistent 
directions,  and  has  said,  that  the  children,  or  (which  is  the  same  thing) 
all  the  children,  shall  participate  in  the  fund,  and  then  directs  that  there 
shall  be  a  division  when  or  as  soon  as  each  attains  twenty-one,  in  that 
case  you  must  do  one  of  two  things, — ^you  must  either  sacrifice  the  di- 
rection that  gives  a  right  to  distribution  at  twenty-one,  or  sacrifice  the 
intention  that  all  the  children  shall  take.  The  court  has  in  such  cases 
decided  in  favor  of  the  eldest  child  taking  at  twenty-one,  as  the  will 
directs,  and  sacrificed  the  intention  that  all  the  children  shall  take. 
In  this  case,  the  testator  has  given  the  residue  to  all  the  children  of 
his  two  sons,  when  the  youngest  attains  theage  ot  twenty-one  years. 
There  are  a  certain  number  oflrhildren,  and  the  elder  children  attain 
twenty-one.  The  inconvenience  pointed  out  by  Mr.  Prior  then  arises : 
the  provision  for  the  maintenance  of  those  children  ceases,  though,  as 
it  cannot  be  certainly  said  that  the  youngest  child  has  attained  twenty- 
one,  they  cannot  claim  a  distributive  share  of  the  fund.  The  question 
is,  how  long  is  the  eldest  child  or  the  other  children  to  wait.  If  the 
objects  of  the  testator's  bounty  can  be  confined  to  children  of  his  sons 
living  at  his  death, — which,  independently  of  the  fact  that  there  is  one 
son  who  had  no  children  at  that  time,  I  am  clear  cannot  be  done  in  this 
case, — it  might  be  possible  to  get  at  tlie  conclusion  which  I  have  al- 
ready mentioned,  that,  the  moment  the  eldest  attained  twenty-one,  the 
period  pointed  out  for  division  arrived.  If  it  be  once  admiitpH  i-h;if 
a  child  born  after  the  death  of  the  testator  may  take,  all  the  inconven- 
ience  is  let  in,  and  the  eldest  child  may  have  to  wait  for  an  mdefinile 
time,  so  long  a£Vhildren  may  contmue  to  be  born.  Jrlow  m  that  case 
is  it  possible  to  limit  the  class  entitled  m  the  way  suggested,  which  is, 
that  the  moment  the  youngest  child  in  esse  attains  twenty-one,  there 
is  to  be  a  division,  although  there  may  be  an  unlimited  number  of  chil- 
dren born  afterwards?  I  do  not  see  how  the  inconvenience  pointed 
out  can  be  avoided.  The  words  of  the  will  do  not  require  an  immedi- 
ate distribution. 

With  respect  to  the  case  of  Hughes  v.  Hughes  [3  Bro.  C.  C.  434], 
it  appeared  to  me  at  first,  that  though  the  language  of  the  court  in  giv- 
ing judgment  was  in  favor  of  the  view  I  take  of  the  case,  the  decree  as 
drawn  up  was  dififerent.  It  is  not,  however,  dififerent,  for  it  lets  in 
all  the  children, — whether  it  means  children  in  esse  or  children  at  any 
4  Kales  Prop. — IS 


274  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

time  born  of  the  daughter,  I  do  not  know.  It  is  not  now  the  practice 
of  the  court  to  make  a  prospective  decree;  but  the  decree  is  open  to 
the  construction,  that  every  child  of  the  daughter  shall  take  a  distribu- 
tive share.  I  see  no  principle  upon  which  a  distribution  can  be  de- 
manded in  the~case  betore~me7  merely  because  the  youngest  grandchild 
in  esse  has  attained  twenty-one. 


In  re  WENMOTH'S  ESTATE. 
(Chancery  Division,  1887.     37  Cli.  Div.  266.) 

William  Wenmoth,  who  died  in  February,  1871,  by  his  will,  dated 
the  19th  of  April,  1870,  after  certain  pecuniary  and  specific  bequests 
gave  all  the  residue  of  his  property  upon  trust  to  pay  to  his  daughter 
Eliza  (Airs.  M'Kever)  an  annuity,  and  directed  his  trustees  during  the 
life  of  his  said  daughter  to  pay  and  apply  the  surplus  of  the  rents, 
dividends,  interest,  and  annual  proceeds,  and  after  her  death  to  apply 
the  whole  of  such  income  "unto  and  equally  between  my  grandchildren 
(being  the  children  oi  my  son  Joseph  and  my  said  daughter  Kiiza)  on 
their  respectively  attaining  the  age  of  twenty-one  years,  during  their 
respective  lives,  share  and  share  alike."  On  the  death  of  any  grand- 
child (except  the  last  survivor)  who  should  die  leaving  issue  the  share 
of  such  income  and  annual  proceeds  of  such  grandchild  so  dying  to  be 
paid  unto  and  equally  between  his  or  her  children  who  being  sons 
should  attain  twenty-one  or  being  daughters  should  attain  that  age  or 
marry.  After  the  death  of  the  last  surviving  grandchild  the  residuary 
estate  to  be  converted,  and  the  proceeds  of  the  conversion  to  be  di- 
vided equally  amongst  testator's  great  grandchildren  living  at  the  death 
of  his  last  surviving  grandchild  and  attaining  twenty-one.  The  share 
of  any  grandchild  in  the  said  rents  and  annual  proceeds  to  be  invested 
by  the  trustees  during  the  minority  of  any  such  grandchild  and  form 
part  of  the  trust.  The  trustees  were  also  empowered  to  apply  all  or 
any  of  the  share  of  the  income  or  capital  of  any  minor  for  his  or  her 
maintenance,  education,  or  advancement. 

Mrs.  M'Kever  had  two  children,  both  of  whom  died  in  the  testator's 
lifetime. 

Joseph  Wenmoth  had  eleven  children,  of  whom  eight  were  now  liv- 
ing. 

Of  these  eight  grandchildren  of  the  testator  five  were  born  in  the 
testator's  lifetime,  and  the  eldest  attained  twenty-one  on  the  25th  of 
March,  1883.  Two  were  born  after  the  testator's  death  and  before 
the  eldest  grandchild  attained  twenty-one;  one  was  bom  in  Febru- 
ary, 1887. 

The  question,  raised  by  originating  summons,  was  whether  the  trusts 
of  the  will  for  the  benefit  of  grandchildren  were  confined  to  such 
grandchildren  as  were  living  at  the  testator's  death,  or  extended  (a) 


Ch.  8)  DETERMINATION   OF   CLASSES  275 

to  grandchildren  born  after  his  death,  before  the  eldest  grandchild  at- 
tained twenty-one,  or  (b)  to  all  grandchildren  whenever  born.  A  fur- 
ther question  was  whether  the  grandchildren  who  for  the  time  being 
had  attained  twenty-one  were  entitled  to  the  whole  of  the  net  income, 
subject  to  Airs.  AI'Kever's  annuity;  and  if  not,  to  what  part  of  such 
income  they  were  entitled,  and  whether  the  plaintiff  (the  surviving  ex- 
ecutor) could  apply  any  and  what  part  of  such  income  for  the  main- 
tenance, &c.,  of  such  of  the  grandchildren  as  for  the  time  being  were 
under  twenty-one. 

Chitty,  J.  An  immediate  gift  of  personal  estate  to  the  children  of 
A.  is  free  from  doubt,  and  those  children  only  take  who  are  living  at 
the  testator's  death.  A  gift  to  the  children  of  A.  who  shall  attain  the 
age  of  twentv-one.  is  also  one  on  which  no  question  can  arise.  The 
class  of  children  in  either  case  remains  open  until  the  period  of  dis_- 
tribution  and  then  closes,  and  all  those  children  who  may  be  born  be- 
fore tlfe  death  of  the  testator,  or  before  the  eldest  of  them  has  at- 
tained twenty-one,  are  admissible,  while  those  bom  after  the  period 
of  distribution  are  excluded.  This  rule,  excluding  as  it  does  from  the 
class  to  be  benehtea  any  child  born  after  the  period  of  distribution, 
may  be  explained  by  the  attempt  of  the  court  to  reconcile  two  incon- 
sistent  directions,  viz.,  that  the  whole  class  should  take  and  also"  that 
the  fund  should  be  distributed  among  them  at  a  period  when  the  whole 
class  could  not  possibly  be  ascertained.  The  rule,  which  was  intended 
as  a  solution  of  the  difficulty,  may  be  said  to  be  a  cutting  of  the  knot 
rather  than  an  unt}ir)g,  and,  though  it  has  been  called  a  rule  of  con- 
venience, must  be  very  inconvenient  to  those  children  who  may  be 
born  after  the  period  of  distributiom  In  Gillman  v.  Daunt,  3  K.  & 
J.  48,  IvOrd  Hatherley,  when  Vice-Chancellor,  said  that  a  child  "who 
has  attained  twenty-one  cannot  be  kept  waiting  for  his  share;  and  it 
you  have  once  paid  it  to  him,  you  cannot  get  it  back."  Where,  how- 
ever, as  in  this  will,  the  distribution  is  of  income  and  not  ot  corpus" 
there  is  nothing  which  requires  the  application  of  the  rule,  and  the  dil- 
ficuTty  does  not  arise. 

In  the  case  of  the  distribution  of  corpus,  the  trustees  cannot  ascer- 
tain what  is  the  aliquot  share  of  a  member  of  the  class  until  the  class 
is  closed,  but  in  the  case  of  a  distribution  of  income  the  distribution  is 
periodical.  Each  member  of  the  class,  as  soon  as  he  becomes  entitled, 
takes  his  share  of  the  income,  and  there  is  no  reason  why  the  rule 
should  be  applied  beyond  each  periodical  payment.  I  have  no  diffi- 
culty, therefore,  upon  principle  in  holding  that  in  the  case  of  a  bequest 
of  income  among  a  class  of  children  to  be  paid  on  their  attaining  twen- 
ty-one years,  the  date  of  the  first  attaining  twenty-one  years  was  not 
the  date  of  the  ascertainment  of  the  class,  and  that  any  child  at  any 
time  attaining  twenty-one  years  will  be  entitled  to  a  share  of  the  in- 
come. Mogg  V.  Mogg,  1  Mer.  654,  appears  to  me  to  be  an  authority 
for  my  decision  as  to  the  distinction  between  a  gift  of  corpus  and  a 
gift  of  income.     In  the  two  cases  cited  in  support  of  the  contention 


276  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

that  the  grandchildren  living  at  the  testator's  death  were  the  only  ob- 
jects to  take  under  the  bequest  (Elliott  v.  Elliott,  12  Sim.  276 ;  In  re 
Coppard's  Estate,  35  Ch.  D.  350),  there  was  a  c|uestion  in  each  as  to 
the  rule  against  perpetuities,  and  although  in  neither  case  was  remote- 
ness made  the  actual  ratio  decidendi  such  a  construction  was  adopted 
as  avoided  an  intestacy  by  the  operation  of  the  law  of  remoteness,  and 
the  decision  in  each  case  saved  the  will.  The  general  law  on  this  point 
is  stated  by  Lord  Selborne  in  Pearks  v.  Moseley,  5  App.  Cas.  719: 
"You  do  not  import  the  law  of  remoteness  into  the  construction  of  the 
instrument,  by  which  you  investigate  the  expressed  intention  of  the 
testator.  You  take  his  words,  and  endeavor  to  arrive  at  their  mean- 
ing, exactly  in  the  same  manner  as  if  there  had  been  no  such  law,  and 
as  if  the  whole  intention  expressed  by  the  words  could  lawfully  take 
effect."  If  I  thought  those  two  cases  in  point  I  should  have  to  con- 
sider them  very  carefully,  but  I  do  not.  I  decline  to  decide  the  ques- 
tion as  to  the  interests  of  the  great-grandchildren  as  being  premature.^^ 


In  re  POWELL. 
(Chancery  Division,  1S97.     L.  R.  [1S9S]  1  Ch.  Div.  227.) 

Adjourned  Summons. 

Alvara  Powell,  by  his  will  dated  October  17,  1877,  gave  all  the  resi- 
due of  his  personal  estate  to  trustees  upon  trust  to  divide  the  interest, 
dividends,  and  annual  profits  thereof  into  three  equal  portions,  and 
upon  trust  to  pay  one-third  part  of  the  interest,  dividends,  and  annual 
profits  of  his  personal  estate  unto  the  children  of  his  sister  Elizabeth  ♦ 
Holmes,  and  to  divide  the  same  equally  amoiigjhem  during  their  lix£Sj_ 
and  atter  their  deaths  to  divide  one-third"  part  of  his  personal  estate 
equally~between  their  children;  but  if  they  should  all  die  without  leav- 
ing any  children,  then  he  directed  his  trustees  to  divide  the  said  third 
part  of  his  personal  estate  equally  among  the  children  of  his  nephew 
Edward  Crosland,  share  and  share  alike. 

The  testator  died  on  July  17,  1879. 

The  testator's  sister  Elizabeth  Holmes,  who  was  upwards  of  eighty 
years  of  age  at  the  date  of  the  testator's  death,  died  on  November  9, 

11  If  the  gift  is  to  members  of  the  class  who  attain  twenty-one,  a  member 
of  the  class  who  has  attained  twenty-one,  there  being  otber  members  of  the 
class  in  existence  under  twenty-one,  is  only  entitled  to  the  income  of  his 
sbare,  having  regard  to  the  number  of  members  of  the  class  for  the  time  be- 
ing in  existence,  but  without  regard  to  the  possibility  of  other  members  of 
the  class  being  subsequently  born.    In  re  Ilolford,  I..  K.  [1S94]  8  Cli.  30. 

On  the  other  hand,  where  tliere  is  a  gift  to  the  members  of  a  class  who  at- 
tain twenty-one,  of  a  fund  or  of  real  estate,  wliicli  does  not  carry  the  inter- 
mediate income,  the  members  of  the  class  who  have,  for  tbe  time  being,  at- 
tained twenty-one  are  entitled  to  the  whole  income,  though  there  may  be 
other  meml)ers  of  the  class  who  have  not  attained  twenty-one.  In  re  Averill, 
L.  B.  [1S08]  1  Ch.  523 ;  Theobald  ou  Wills  (7th  Ed.)  p.  ISi'. 


Ch.  8)  DETERMINATION   OF   CLASSES  277 

1888.     She  had  several  children,  one  of  whom  had  died  leaving  chil- 
dren. 

This  summons  was  taken  out  by  the  trustees  of  the  will  for  the  de- 
termination (inter  alia)  of  the  question  whether  the  trust  by  the  will 
declared  of  one-third  of  the  testator^sj;esiduarv  personal  estate  in  fa- 
vor  of  the  children  ot  the  childreii'ofthe  testator's  sister  Elizabeth" 
Holmes  w^as  valid,  or  void  as  transgressmg  the  rule  agamst  perpetu- 
ties"!        ~  '  ~  ~  " 

"TvEKEwiCH,  J.  The  first  question  is  Avhether,  according  to  the  lan- 
guage of  the  will,  the  yift  to  the  children  of  the  testator's  sister  Eliza- 
beth Holmes  must  be  confined  to  those  living  at  the  date  of  the  death 
of  tlie  testator,  or  be  construed  so  as  to  admit  any  children  who  may 
be  born  after  that  date,  'i'he  argument  in  favor  of  the  more  extensive" 
construction,  admitting  the  after-born  children,  is,  I  think,  founded 
entirely  on  an  application,  which  I  venture  to  call  a  misapplication,  of 
the  decision  of  Chitty,  J.,  in  In  re  Wenmoth's  Estate,  37  Ch.  D.  266. 
It  is  said  that  the  learned  judge  was  there  dealing  with  the  same  rule 
of  convenience  as  that  which  applies  to  the  present  case,  and  that  the 
exception  to  the  application  of  the  rule  which  was  adopted  by  him  is 
applicable  to  this  case  also.  The  answer,  to  my  mind,  is  clear.  Wheth- 
er the  rule  which  I  am  asked  to  apply  can  or  cannot  be  properly  de- 
scribed as  a  rule  of  convenience,  it  is  not  the  rule  of  convenience  with 
which  Chitty,  J.,  was  dealing.  There  is  some  foundation  for  the  argu- 
ment, and  for  calling  the  rule  a  rule  of  convenience.  Mr.  Theobald,  a 
well-known  and  careful  author,  in  his  book  on  Wills  has  described  both 
the  rule  which  I  have  to  apply  here  and  the  rule  with  which  Chitty, 
J.,  was  dealing  as  rules  of  convenience.  With  great  respect  to  Mr. 
Theobald's  accuracy,  I  venture  to  think  that  the  law  is  better  stated  in 
Mr.  Vaughan  Hawkins'  treatise.  He  devotes  Chapter  VII.  to  "Chil- 
dren, &c.,  when  ascertained,"  and  on  page  68  he  says  this :  "It  might 
be  supposed  that  a  gift  to  the  children  of  a  person  simpliciter,  would 
include  all  the  children  he  might  have,  whenever  coming  into  existence ; 
but  the  testator  is  considered  to  intend  the  objects  of  his  bounty  to  be 
ascertained  at  as  early  a  period  as  possible ;  and  it  may  be  laid  down 
as  a  general  rule  (qualified  by  the  other  rules  which  follow  in  this  chap- 
ter) that" — and  then  he  thus  states  the  rule :  "A  devise  or  bequest  to 
the  children  of  A.  or  of  the  testator,  means,  prima  facie,  the  children 
in  existence  at  the  testator's  death:  provided  there  are  such  children 
then  in  existence."  He  cites  Viner  v.  Francis  (1789),  2  Cox,  190,  a 
case  which  is  also  cited  by  Mr.  Theobald,  4th  ed.,  p.  255.  It  is  over 
a  hundred  years  old,  and  there  can  be  no  question  about  the  authority 
of  it.  Mr.  Hawkins  on  a  somewhat  later  page  also  deals  in  a  similar 
way  with  the  rule  with  which  Chitty,  J.,  dealt  in  In  re  Wenmoth's  Es- 
tate. At  page  75  he  says :  "In  the  cases  considered  under  the  preced- 
ing rule,  the  shares  of  all  the  objects  became  payable  at  the  same  time, 
and  the  period  of  distribution  was  the  same  for  them  all :  where  the 
shares  become  payable  at  different  times,  as  in  the  ordinary  case  of  a 


278  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

gift  to  children  at  twenty-one  or  marriage,  the  last  rule  requires  to  be 
supplemented  by  another,  namely,  that  where  there  is  a  bequest  of  an 
aggregate  fund  to  children  as  a  class,  and  the  share  of  each  child  is 
made  payable  on  attaining  a  given  age,  or  marriage,  the  period  of  dis- 
tribution is  the  time  when  the  first  child  becomes  entitled  to  receive  his 
share,  and  children  coming  into  existence  after  that  period  are  ex- 
cluded." This  rule,  which  accelerates  the  period  of  distribution  by 
fixing  it  at  the  time  when  the  first  child  becomes  entitled  to  receive  his 
share,  is  undoubtedly  a  rule  of  convenience.  The  two  rules,  however, 
seem  to  me  to  depend  on  different  considerations.  The  latter  is  purely 
a  rule  of  convenience,  which,  as  is  admitted  by  all  who  have  com- 
mented on  it,  contradicts  the  words  of  the  will.  The  other  rule  does 
not  necessarily  contradict  the  words  of  the  will,  because,  in  legal 
phraseology,  "all  the  children"  is  intended  to  mean  "all  the  children 
living  at  the  testator's  death."  No  lawyer  could  doubt  that  a  gift  of 
a  sum  of  money  to  the  "members  of  a  club"  would  extend  only  to 
those  who  fulfilled  that  description  at  the  time  of  the  testator's  death. 
There  does,  therefore,  seem  to  me  to  be  a  distinction  of  substance  be- 
tween the  first  rule,  which  may  to  some  extent  be  a  rule  of  conven- 
ience, and  the  second  rule,  which  is  purely  and  simply  a  rule  of  con- 
venience, although,  no  doubt,  they  must  both  be  treated  as  instances 
of  rules  fixing  the  period  of  distribution  in  the  case  of  gifts  to  a  class 
of  persons.  Chitty,  J.,  in  In  re  Wenmoth's  Estate,  was  dealing  solely 
with  the  second  rule,  i.  e.,  the  rule  which  fixes  the  period  of  distribu- 
tion among  children  at  the  time  when  the  first  child  becomes  entitled. 
It  is  that  rule  which  he  declines  to  extend  to  a  case  where  income  only 
is  given;  and  I  do  not  think  it  occurred  to  him  to  consider  in  any 
way  whether  it  would  be  right  to  depart  from  the  rule  as  to  children 
being  ascertained  at  the  testator's  death  because  they  were  only  inter- 
ested in  income,  or  for  any  other  reason.  His  judgment  does  not  ap- 
pear to  me  to  apply  to  such  a  case  as  the  present  one,  and  this  gift 
must  be  construed  according  to  the  ordinary  rule.  I  therefore  hold 
that,  under  the_gift  of  income,  only  the  children  of  Elizabeth  Holmes 
living  at  the  ^stator's  death  t'aFe.  and  ttiat  the'gilLover  tol:he  childreTT 
children  is 


laration  to  that  effect. 


Ch.  9)  EXECUTORY   DEVISES  AND  BEQUESTS  279 


CHAPTER  IX 

DIVESTING  CONTINGENCIES  AND  CONDITIONS  PRE- 
CEDENT TO  THE  TAKING  EFFECT  OF  EXECU- 
TORY DEVISES  AND  BEQUESTS 


SECTION  1.— FAILURE  OF  EXECUTORY  DEVISE  OR 

BEQUEST 


HARRISON  V.  FOREMAN. 
(Court  of  Chancery,  ISOO.    5  Ves.  207.) 

John  Stallard,  being  possessed  among  other  personal  estate  of  £566 
annuities  of  1778,  by  his  will  dated  the  13th  of  August,  1779,  gave  to 
Joseph  Jennings  and  John  Harrison  £40  per  annum,  part  of  the  said 
annuities,  in  trust  to  pay  the  dividends  and  produce  thereof,  which 
should  from  time  to  time  arise  and  become  payable,  to  his  cousin 
Mrs.  Sarah  Barnes  during  her  life,  exclusive  of  her  marriage  or  any 
future  husband,  and  not  to  be  subject  to  his  or  their  debts  or  control ; 
and  from  and  after  her  decease  upon  trust  to  transfer  the  said  sum  of 
£40  per  annum,  or  the  stock  or  fund,  wherein  the  produce  thereof 
might  be  invested,  to  Peter  Stallard  and  Susannah  Snell  Stallard, 
children  of  his  (the  testator's)  cousin  William  Stallard,  in  equal  moie- 
ties; and  in  case  of  the  decease  of  either  of  them  in  the  lifetime  of 
the  said  Sarah  Barnes,  then  he  gave  the  whole  thereof  to  the  survivor 
of  them  living  at  her  decease.  He  gave  all  the  residue  of  his  estate 
and  effects  of  every  kind  to  Elizabeth  Stallard  and  Sarah  Stallard, 
the  children  of  his  cousin  Abraham  Stallard,  to  be  equally  divided  be- 
tween them,  share  and  share  alike;  and  he  appointed  Jennings  and 
Harrison  his  executors. 

By  a  codicil,  dated  the  2d  of  February,  1781,  among  other  things 
the  testator  revoked  the  disposition  of  the  residue,  and  gave  it  in  the 
same  terms  to  the  said  Elizabeth  Stallard  and  Sarah  Stallard,  and 
Mary  Main,  sen.,  and  ]\Iary  Main,  jun.,  equally. 

By  another  codicil,  dated  9th  of  Februar}%  1782,  the  testator,  taking 
notice  of  the  death  of  Jennings,  appointed  another  joint-executor 
with  Harrison. 

The  testator  died  in  March,  1782.  Susannah  Snell  Stallard  and 
Peter  Stallard  died,  the  former  in  January,  1784,  the  latter  in  Decem- 
ber in  the  same  year ;  both  intestate.  Sarah  Barnes  died  in  January, 
1797.     The  bill  was  filed  by  the  executors  of  the  testator;  praying 


280  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

that  it  may  be  declared,  who  are  entitled  to  the  said  £40  per  annum, 
annuities,  &c.  The  question  was  between  the  defendant  Foreman, 
administratrix  of  Susannah  Snell  Stallard  and  Peter  Stallard,  and  the 
residuary  legatees,  claiming  it  as  having  fallen  into  the  residue. 

Master  of  the  Rolls  [Sir  Richard  Pepper  Arden].  The  only 
question  upon  this  will  is,  whether  by  the  event,  that  has  happened, 
the  deaths  of  Susannah  Snell  Stallard  and  Peter  Stallard  in  the  life 
of  Sarah  Barnes,  this  sum  of  £40  per  annum  annuities  given  after  her 
death  in  their  favor  is  undisposed  of ;  or  in  other  words  whether  the 
bequest  is  by  these  means  put  an  end  to  and  become  absolutely  void. 
Upon  the  first  part  of  the  will,  if  it  stood  without  the  condition  an- 
nexed in  case  of  the  death  of  either  of  them  in  the  lifetime  of  Sarah 
Barnes,  there  could  be  no  doubt,  I  suppose,  that  it  would  have  been  a 
vested  interest  in  those  two  persons ;  for  it  is  a  bequest  of  these  an- 
nuities to  a  person  during  her  life;  and  after  her  decease  to  two 
given  persons  in  equal  moieties.  If  it  rested  upon  those  words,  there 
could  be  no  doubt  it  would  upon  the  death  of  that  person  have  been 
a  vested  interest  in  them  as  tenants  in  common,  transmissible  to  their 
representatives,  w-hether  they  survived  the  person  entitled  for  Ufe,  or 
died  before  her.  Then  comes  the  condition  annexed ;  makinsf  a  dis- 
position  in  a  given  event  different  from  that  which  would  have  been 
the  effect  of  the  first  words.  The  contingency  described  in  that  part 
of  the  will  never  took  place;  there  being  no  survivor  of  those  two 
persons  at  that  time.  The  question  is,  then,  whether  this  makes  the 
whole  void ;   as  if  it  never  vested  at  all. 

It  is  perfectly  clear,  that  where  there  are  clear  words  of  gift,  giving 
a  vested  interest  to  parties,  the  court  will  never  permit  that  absolute 
gift  to  be  defeated,  unless  it  is  perfectly  clear,  that  the  very  case  has 
happened,  in  which  it  is  declared,  that  interest  shall  not  arise.  The 
case  of  Mackell  v.  Winter  [3  Ves.  Jr.  236,  536],  is  most  analogous  to 
this.  I  held  the  interest  absolutely  vested  in  the  surviving  grandson. 
My  decree  was  reversed:  the  Lord  Chancellor  holding  two  things; 
in  both  of  which  I  had  given  an  opinion ;  first,  that  it  never  did  vest 
in  the  two  grandsons  or  the  survivor  of  them:  secondly,  If  it  did  vest, 
yet  it  sufficiently  appeared  upon  the  will,  that  the  testator  intended  a 
survivorship  to  take  place  between  all  three,  the  grandsons  and  the 
granddaughter,  though  it  was  not  expressed.  As  to  the  first  point, 
it  does  not  bear  upon  this  case.  The  Lord  Chancellor  was  of  opinion, 
the  words  were  not  sufficient  to  give  a  vested  interest  to  the  two 
grandsons  for  this  reason ;  that  nothing  was  given  to  them  till  their 
ages  of  twenty-one :  but  the  capital  and  the  accumulation  are  directed 
to  be  paid  to  them  at  that  time  and  no  other.  His  Lordship's  opinion 
is  expressly  founded  upon  that.  My  opinion  rested  entirely  upon  the 
first  point.  I  admit  the  absurdity  of  the  intention;  but  that  is  no 
reason  why  it  should  not  prevail.  I  am  very  glad  the  decree  took 
the  turn  it  did ;  for  unquestionably  it  effected  the  real  intention  of 
the  testatrix. 


Ch.  9)  FAILURR    OF    EXECUTORY   DEVISE  281 

But  without  entering  into  that  question,  or  commenting  farther 
upon  that  case,  to  which  it  is  my  duty  to  submit,  it  is  sufficient  to  say, 
that  it  is  impossible  any  doubt  can  be  entertained  upon  the  words  of 
this  will.  Upon  the  principle  of  the  Lord  Chancellor's  opinion,  that 
the  words  in  that  will  were  not  sufficient  to  give  any  vested  interest 
till  the  attainment  of  majority,  my  decree  undoubtedly  was  wrong. 
But  upon  the  doctrine  held  both  by  his  Lordship  and  by  me  it  must 
be  determined,  that  upon  the  words  of  this  will  there  was  a  vested 
interest,  that  was  to  be  devested  only  upon  a  given  contingency,  and 
the  question  only  is,  whether  that  contingency  has  happened.  No 
words  can  be  more  clear  for  a  vested  interest.  Then  the  rule  that  I 
anplied  in  Mackell  v.  Winter,  and  that  was  admitted  by  the  Lord 
Chancellor,  takes  place;  that  if  there  is  a  clear  vested  interest,  the 
court  is  only  to  see,  what  there  is  to  take  it  away ;  and  the  only  con- 
tingency is,  that  in  case  of  the  decease  of  either  of  them  in  the  life 
of  Mrs.  Barnes  the  whole  is  to  go  to  the  survivor.  Neither  of  them 
was  living  at  her  death.  That  rule,  therefore,  that  I  applied  in  Mack- 
ell V.  Winter,  and  that  I  still  think  binding  upon  a  court  of  equity, 
applies.  There  is  a  vested  interest ;  and  the  contingency,  upon  which 
it  is  to  be  devested,  never  happened  :  the  vested  interest  therefore  re- 
mains ;  as  if  that  contingency  had  never  been  annexed  to  it.  L'pon  the 
principles  laid  down  by  the  Lord  Chancellor  in  Mackell  v.  Winter  I 
am  perfectly  clear,  his  Lordship  would  have  agreed  with  me  in  this 
case.  I  could  illustrate  the  principle  by  putting  the  case  of  a  real  es- 
tate, instead  of  these  annuities,  given  after  the  death  of  the  tenant 
for  life  to  these  two  persons  and  their  heirs,  as  tenants  in  common ; 
but,  if  either  of  them  dies  before  the  death  of  the  tenant  for  life,  then 
to  the  survivor  and  his  heirs.  Putting  it  so,  there  is  no  possibiHty  of 
doubt,  it  would  have  been  a  vested  interest  in  them,  to  be  devested 
upon  a  contingency,  which  did  not  take  place. 

It  is  unnecessary  for  me  to  take  notice  of  that  case  of  Allen  v. 
Barnes,  as  1  have  elsewhere  [Perry  v.  \\'oods,  3  Ves.  Jr.  204,  208]  ob- 
served, that  it  is  not  correctly  reported. 

Declare,  that  these  annuities  of  f40  per  annum  were  a  vested  inter- 
est in  Susannah  Snell  Stallard  and  Peter  Stallard,  and  now  belong  to 
the  defendants  Foreman  and  his  wife  in  right  of  the  latter  as  their  ad- 
ministratrix. 


282  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

JACKSON  V.  NOBLE. 
(Court  of  Chancery,  183S.     2  Keen,  590.) 

This  was  a  bill  filed  by  Mary  Anne  Jackson  and  others,  against 
Mary  Ann  Noble  and  Edward  Leslie,  praying  that  the  wills  of  David 
Russen,  George  William  Riissen,  and  Jane  Russen,  might  be  estab- 
lished, and  that  the  rights  of  the  parties  to  certain  property  given  by 
the  will  of  David  Russen  to  the  defendant,  Mary  Ann  Noble,  might 
be  declared,  and  that  consequential  relief  might  be  given. ^ 

On  the  29th  October,  1813,  David  Russen  made  his  will,  and  there- 
by, after  giving  to  his  son,  George  William  Russen,  certain  leasehold 
estates  and  his  money  in  the  funds,  with  certain  exceptions,  gave  and 
bequeathed  as  follows :  "And  I  do  hereby  give,  devise,  and  bequeath, 
all  those  my  freehold  estates,  situate  and  being  in  Upton  Lane,  West- 
ham,  in  the  county  of  Essex,  in  the  possession  of  Mr.  Clark :  also 
my  freehold  estate  situate  in  Golden  Lane,  in  the  city  of  London,  in 
the  possession  of  Mrs.  Snell  and  Mr.  Sandover :  also  my  moiety  or 
half  part  of  my  copyhold  messuage  or  tenement,  garden  and  prem- 
ises, situate  at  Westham,  in  the  county  of  Essex,  in  the  possession  of 
Mr.  Stuart,  and  which  said  estate  I  have  surrendered  to  the  use  of 
this  my  will:  also  my  leasehold  estate,  situate  and  being  in  Philip 
Lane,  in  the  city  of  London,  in  the  possession  of  Mr.  Thomson ;  and 
il.OOO  3  per  cent  stock  unto  my  daughter  Mary  Ann  Russen,  and 
Matthew  Peter  Davies,  of  Saint  Martin's  Le  Grand,  and  George  Wil- 
liam Russen,  of  Aldersgate  Street,  gentlemen,  their  heirs,  executors, 
administrators,  and  assigns,  to  have  and  to  hold  the  said  last-men- 
tioned freehold  and  leasehold  messuages,  tenements,  estates,  and 
premises,  with  their  several  and  respective  appurtenances,  and  the 
aforesaid  il,000  stock,  unto  my  said  daughter  Mary  Ann  Russen,  the 
said  Matthew  Peter  Davies,  and  George  William  Russen,  their  heirs, 
executors,  administrators,  and  assigns,  for  and  according  to  my  sev- 
eral estates,  right,  interest,  and  term  of  years  therein  respectively. 
In  trust  to  permit  and  suffer  my  said  daughter,  M.  A.  Russen,  and 
her  assigns,  to  receive  and  take  the  interest  and  dividends  of  the  said 
il,000  stock,  and  the  rents,  issues,  and  profits  of  the  said  several  last- 
mentioned  estates,  for  and  during  the  term  of  her  natural  life,  to  and 
for  her  own  separate,  personal,  and  peculiar  use  and  benefit,  inde- 
pendent of  any  husband,  with  whom  my  said  daughter  shall  or  may 
at  any  time  or  times  hereafter  intermarry;  and  not  be  subject  to  his 
or  their  debts,  povvers,  control,  engagement,  or  intermeddling;  and 
for  which  her  receipts  alone  shall  from  time  to  time,  and  at  all  times 
hereafter,  be  full,  good,  and  sufficient  discharges,  notwithstanding 
any  such  coverture,  in  such  and  the  like  manner  as  if  she  had  con- 
tinued a  feme  sole  and  unmarried,  and  that  to  all  intents  and  purposes 

1  Only  that  part  of  the  case  which  relates  to  the  effect  of  the  executory  gift 
is  here  given. 


Ch.  9)  FAILURE   OF   EXECUTORY  DEVISE  283 

whatsoever.  And  from  and  after  the  decease  of  my  said  daughter, 
in  trust  to  convey  and  assign  the  said  several  last-mentioned  freehold 
and  leasehold  estates,  and  the  said  £1,000  stock,  unto  the  heirs,  ex- 
ecutors, and  assigns  of  my  said  daughter,  for  and  according  to  all 
my  estate  and  right  therein  respectively.  Nevertheless,  in  case  my 
said  daughter  shall  intermarry  and  have  no  child  or  children,  then  the 
said  estates  and  money  in  the  funds  shall  belong  to  my  son  George 
William  Russen;  or  (in  case  of  his  decease  before  my  said  daughter, 
then  to  such  child  or  children  as  he  may  happen  to  have) ;"  and  after 
enabling  his  daughter  to  grant  leases  of  the  freehold  and  leasehold 
estates  so  given  to  her,  and  giving  certain  other  legacies,  he  gave  all 
the  residue  of  his  estate  to  his  son  George  William  Russen. 

By  a  codicil,  the  testator  gave  to  his  daughter,  Mary  Ann  Russen, 
a  further  sum  of  il,000  3  per  cent  reduced  annuities,  subject  to  the 
like  terms  and  conditions  as  before  mentioned  and  described  in  his 
will. 

The  testator  died  on  the  6th  of  February,  1819.  He  left  his  son 
George  William  Russen  his  heir-at-law  and  customary  heir,  and  his 
daughter  Mary  Ann  Russen  surviving.  The  son  George  William 
Russen  proved  the  will,  and  became  legal  personal  representative. 

He  died  without  issue,  having  made  a  will,  dated  the  28th  February, 
1833,  by  the  recital  of  which  he  showed,  that  he  considered  himself 
interested  in  the  property  given  to  his  sister  by  his  father's  will ;  and 
he  made  a  general  gift  of  his  own  property  to  his  wife,  under  whom 
the  plaintiffs  claim  to  be  entitled. 

Mary  Ann  Russen  married,  and  was  now  the  defendant,  Mary  Ann 
Noble ;  but  she  had  no  child. 

The  Master  of  the  Rolls  [Lord  Langdale].  The  first  question 
is,  what  estate  is  given  to  Mrs.  Noble?  Is  she  entitled  to  an  estate 
for  life  only,  or  to  an  absolute  estate,  subject  to  be  defeated  by  a  con- 
tingent executory  gift  over?  If  the  former,  the  plaintiffs  are  entitled 
to  the  claim,  which  they  have  made  in  this  respect.  If  the  latter,  it 
is  to  be  considered,  whether  the  event  on  which  the  executory  gift 
over  was  to  take  effect,  can  now  happen. 

It  is  admitted  on  both  sides,  that  Mrs.  Noble  has  an  equitable  es- 
tate for  life.  During  her  life  it  is  the  office  of  the  trustees,  to  pre- 
serve for  her,  the  separate  and  independent  use  of  the  income;  after 
her  decease,  it  is  the  office  of  the  trustees,  to  convey  and  assign  all 
the  testator's  interest  to  her  heirs,  executors,  administrators,  or  as- 
signs. It  is  not  the  case  of  an  equitable  or  trust  estate  for  life,  with 
a  use  executed  in  the  heir,  upon  the  death  of  the  tenant  for  life;  but 
a  case,  in  which  the  trustees  have  a  duty  to  perform,  after,  as  well  as 
before,  the  death  of  the  tenant  for  life ;  and  in  which  the  duty  after 
the  death  of  the  tenant  for  life,  is  clear  and  defined,  neither  requiring 
nor  admitting  of  any  modification.  There  would,  on  the  death  of  the 
tenant  for  life,  be  nothing  for  this  court  to  do,  but  to  direct  the  con- 
veyance or  assignment  to  the  heirs,  executors,  administrators  or  as- 


1 

284  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

signs ;  and  I  think  that  upon  the  construction  of  this  part  of  the  will, 
independently  of  the  contingent  executory  gift  Over,  there  is  an  eq- 
uitable estate  for  life,  with  an  equitable  remainder  to  the  heirs,  ex- 
ecutors, administrators,  and  assigns ;  and  that  Mrs.  Noble  has  an 
absolute  estate,  subject  to  be  defeated  by  the  executory  gift  over. 

And  if  this  be  so,  the  question  is,  whether  the  particular  event  on 
which  the  vested  estate  was  to  be  devested,  can  now  happen ;  and 
having  regard  to  the  intention  of  the  testator,  and  the  words  in  which 
the  gift  over  is  expressed,  I  am  of  opinion,  that  the  gift  over  was  to 
take  effect,  only  in  the  event  of  Mrs.  Noble's  marrying  and  dying 
without  issue,  in  the  lifetime  of  her  brother,  or  of  such  child  or  chil- 
dren as  he  might  happen  to  leave ;  and  as  he  died  in  her  lifetime,  and 
had  no  child,  I  think  that  the  contingent  executory  gift  cannot  take 
effect,  and  that  the  estate  already  vested  in  Mrs.  Noble  cannot  now 
be  devested.^ 


DOE  d.  BLOMFIELD  v.  EYRE. 

(Exchequer  Chamber,  1S48.     5  C.  B.  713.) 

ParkK,  B.,*  now  delivered  the  judgment  of  the  court* 
This  case  comes  before  us  on  a  writ  of  error  on  a  judgment  of 
the  Court  of  Common  Pleas  on  a  special  verdict.  The  facts  of  the 
case  are  fully  stated  in  the  special  verdict.  It  is  unnecessary  to  ad- 
vert to  them  in  detail ;  a  very  short  statement  is  sufficient  to  explain 
the  questions  w'hich  we  have  to  decide. 

On  the  marriage  settlement  of  Mary  Sida,  a  copyhold  estate  of 
which  she  was  seised  in  fee,  was  settled  to  the  use  of  her  husband 

2  Bequest  to  the  testator's  wife  for  life ;  and  after  her  death  the  capital 
to  be  divided  between  the  testator's  brothers  and  sisters  in  equal  shares ;  but 
in  case  of  the  death  of  any  of  them  in  the  lifetime  of  the  wife,  his  or  her 
shares  to  be  divided  between  all  his  or  her  children.  Held,  that  the  repre- 
sentative of  a  brother  who  had  died  in  the  wife's  lifetime  without  issue  wa& 
entitled.     Smither  v.  ^Yillock,  9  Ves.  233  (1S04). 

Bequest  of  interest  and  dividends  of  personal  property  to  A.  for  life,  and 
on  her  death  the  same  to  be  equally  divided  among  her  children,  or  such  of 
them  as  should  be  living  at  her  death.  A.'s  children  all  died  before  her. 
Held,  that  they  all  took  vested  interests  which  had  not  been  divested.  Stur- 
gess  V.  Pearson,  4  Mad.  411  (1S19). 

See  also  Norman  v.  Kynaston,  3  De  G.,  F.  &  J.  29  (ISGl) ;  Ci'ozier  v.  Crozier^ 
L.  R.  15  Eq.  2S2  (1873) ;    In  re  Pickworth,  [1899]  1  Ch.  G42. 

Bequest  of  income  to  two  grandchildren  until  they  became  of  age,  when 
they  were  to  be  paid  the  principal,  and  if  one  died  before  majority  the  other 
was  to  receive  the  whole;  if  both  died  before  majority,  it  was  to  be  paid  to 
their  father.  Both  children  died  under  age,  but  the  gift  over  did  not  take 
effect,  because,  as  the  court  construed  the  limitations,  the  father  only  took  if 
he  survived  the  death  of  both  children  under  twenty-one.  This  he  did  not  do. 
It  was  held  that  the  survivorship  of  the  father  was  a  part  of  the  divesting 
contingency,  and  hence,  when  one  child  died,  the  other  took  the  whole,  and 
that  interest  had  never  been  divested.  Dusenberry  v.  Johnson,  59  N.  J.  Eq. 
336,  4.5  Atl.  103. 

3  Only  the  opinion  is  here  given. 

*  Parke,  B.,  Alderson,  B.,  Coleridge,  J.,  Piatt,  B.,  Erie,  J.,  Eolfe,  B.,  and 
Wightman,  J. 


Ch.  9)  FAILURE    OF    EXECUTOEY    DEVISE  285 

for  life,  and,  after  his  death,  to  the  use  of  Mary  Sida,  for  life,  and, 
from  and  after  her  decease,  to  the  use  of  such  child  or  children  of 
the  body  of  Mary  Sida,  by  her  intended  husband,  and  for  such  es- 
tates or  other  interest,  and  in  such  parts,  shares,  or  proportions,  as 
Mary  Sida,  by  any  deed  or  writing,  sealed  in  the  presence  of,  and  at- 
tested by,  two  witnesses,  or  her  last  will,  duly  executed,  might  direct 
and  appoint ;  and,  for  want  of  such  appointment,  to  the  use  of  all 
the  children  of  the  marriage,  as  tenants  in  common  in  tail ;  and,  in 
default,  to  Mary  Sida  in  fee. 

Mary  Sida,  in  the  lifetime  of  her  husband,  and  then  having  two 
sons,  made  a  will,  duly  executed  according  to  the  power,  and  ap- 
pointed the  estate  to  her  eldest  son,  John  Blomfield,  and  his  heirs  and 
assigns  forever,  upon  condition  that  he  should  pay  to  her  other  son 
£200,  within  a  year  and  a  day  after  her  husband's  death,  in  case  he 
should  be  living,  and  twenty-one  years  of  age,  &c. ;  but,  if  neither  of 
her  sons  should  be  living  at  the  decease  of  her  husband,  she  appointed 
the  estate  to  her  father-in-law,  his  heirs  and  assigns,  upon  certain 
trusts. 

The  testatrix  died  in  1782.  John  Blomfield,  the  devisee,  died  in 
1820,  in  his  father's  lifetime,  leaving  the  lessor  of  the  plaintiff,  his 
youngest  son  and  customary  heir:  and  the  father  died  afterwards, 
in  1820.  William  Blomfield,  the  second  son,  had  previously  died,  in 
1767. 

This  action  was  brovight  in  1841.  The  defendant  defended  for  six 
seventh  parts  of  the  property ;  and  the  question  is,  whether  the  lessor 
of  the  plaintiff  is  entitled  to  recover  those  six  sevenths. 

The  Court  of  Common  Pleas  decided  that  he  was  not;  and  we  are 
of  opinion  that  their  decision  was  correct. 

Two  objections  were  made  to  the  title  of  the  lessor  of  the  plaintiff. 
The  first  objection  was,  that  there  was  no  dispensation  of  coverture 
in  the  power  given  to  Mary  Sida ;  and  that  her  execution  of  the  pow- 
er during  coverture,  was  therefore  void.  The  second  was,  that  John 
Blomfield,  the  son,  had  no  estate  which  descended  to  the  lessor  of  the 
plaintiff. 

We  intimated  our  opinion,  in  the  course  of  the  argument,  that  it 
was  clear  that  there  was  in  this  case,  an  implied  dispensation  of  cover- 
ture, and  that  there  could  be  no  doubt  that  the  meaning  of  the  settle- 
ment was,  that  the  power  should  be  executed  by  Mary  Sida  whether 
she  were  sole  or  covert. 

The  second  was  the  principal  question.  It  was  contended,  on  be- 
half of  the  defendant  in  error,  that  the  appointment  to  the  son  was 
altogether  void,  by  being  so  connected  with  the  appointment  to  the 
father-in-law  that  it  could  not  be  separated.  If  this  was  so,  the 
plaintiff  could  not  be  entitled  to  recover.  But  the  learned  counsel 
for  the  plaintiff  in  error,  argued,  that  the  appointment  was  not  alto- 
gether void,  but  gave  a  vested  defeasible  estate  in  fee  to  the  eldest 
son ;  and  that  the  appointment  over  alone  was  void. 


286  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

Admitting  that  argument  to  be  correct, — as  we  think  it  was, — ^we 
are  of  opinion,  that,  in  the  event  which  has  happened,  this  estate  was 
put  an  end  to,  and,  consequently,  that  the  lessor  of  the  plaintiff  is  not 
entitled. 

The  learned  counsel  contended,  that,  where  there  is  an  estate  in 
fee,  liable  to  be  defeated  on  a  condition  subsequent,  and  that  condi- 
tion eitlier  originally  was,  or  by  matter  subsequent  became,  impossible 
to  be  performed,  the  defeasible  estate  was  made  absolute;  and  he 
cited  Co.  Lit.  206  a.  Of  this  there  is  no  doubt;  the  principle  is  ap- 
plicable to  this  case,  if  the  condition  was  impossible.  But  the  ques- 
tion is,  what  was  the  condition  by  which  the  testatrix  meant  the  es- 
tate to  be  defeated?  Was  it — if  the  two  sons  should  die  in  the  father's 
lifetime?  or  was  it — if  they  so  died,  and  the  estate  should,  by  law, 
vest  in  the  father-in-law?  In  the  former  case,  the  plaintiff  would 
fail ;   in  the  latter,  he  would  succeed. 

This  question  is  not  peculiar  to  cases  of  appointments  under  pow- 
ers :  it  might  arise  upon  an  ordinary  will.  If  a  testator  were  to  devise 
to  A.  B.  in  fee,  and  to  direct,  that,  in  the  event  of  A.  B.  dying  in  the 
lifetime  of  J.  S.,  the  estate  should  go  over  to  a  charity,  it  surely  is 
perfectly  clear,  that,  if  A.  B.  died  in  the  lifetime  of  J.  S.,  he,  A.  B.,  or, 
rather,  his  heirs,  would  lose  the  estate.  The  testator  could  not  give  to 
the  charity,  without  taking  away  from  the  devisee.  The  testator, 
therefore,  in  such  a  case,  by  his  will  says :  "If  A.  B.  dies  in  the  life- 
time of  J.  S.,  I  do  not  mean  that  A.  B.  or  his  heirs  should  any  longer 
have  the  estate."  The  estate  of  A.  B.  is  in  such  case  defeated,  not  by 
the  giving  over  of  the  estate  to  the  charity,  but  by  the  happening  of 
the  event  on  which  the  testator  intended  it  should  go  over."  So,  in 
the  case  before  us :  the  testatrix  (for,  for  this  purpose,  she  may  be 
treated  as  an  ordinary  testatrix),  says,  in  substance:   "If  my  son  John 

5  In  the  case  of  a  devise  by  A.  to  B.  in  fee,  upon  a  contingent  event,  with- 
out more,  the  land  descends  to  the  lieir  of  A.,  subject  to  the  contingent  ex- 
ecutory devise,  and  the  fee  is  in  the  lieir  of  A.,  until  that  devise  takes  effect. 
Any  declaration  that,  until  the  event  contemplated,  A.'s  heirs  shall  not  have 
the  land,  would  be  nugatory,  as  the  heir  necessarily  takes  in  the  absence  of 
an  immediate  effectual  disposition  thereof.  So,  in  the  case  of  a  devise  by  A. 
to  B.  in  fee  on  a  contingent  event,  and  subject  to  the  contingent  devise,  to  C. 
in  fee,  C.  is  substituted  for  the  heir  of  A.,  and  the  fee  vested  in  C.  remain* 
undivested  until  the  devise  to  B.  takes  effect.  In  each  case  the  intention  is, 
in  the  event  contemplated,  not  simply  that  the  primai-j-  taker  shall  not  re- 
tain the  land,  but  that  the  land  shall  go  preferably  to  B.,  and  if,  from  any 
cause  whatever,  B.  is  incapable  of  taking,  the  divesting  intention  fails.  (Ace. 
per  Rolfe,  B.,  5  C.  B.  744.)  Tlie  effect  is,  in  substance,  the  same  where  A. 
devises  to  B.  in  fee,  with  a  contingent  executory  devise  over  to  C.  If,  by  any 
means,  the  devise  to  C.  is  removed  out  of  the  way,  or  if  the  devise  to  C.  is  of 
a  less  estate  than  the  fee,  the  estate  of  B.  is  not  defeated,  or  is  only  partially 
defeated.  The  estate  was  not  intended  to  be  taken  from  B.,  for  any  other 
purpose  than  that  of  giving  it  to  C,  and  that  purpose  failing,  A.'s  original 
bounty  remains  in  full  operation.  It  appears  to  be  immaterial  from  what 
cause  the  executory  devise  to  C.  fails  of  effect,  whether  by  reason  of  the  con- 
tingency itself  not  arising,  or  of  its  being  too  remote,  or  of  the  death  of  C. 
in  the  lifetime  of  A.,  or  of  O.'s  incapacity  to  take.  The  late  case  of  Jackson 
V.  Noble,  2  Keen,  590,  appears  to  be  in  substance  this:  A.  devises  to  B.  in  feei 


Cll.  9)  FAILURE   OF    EXECUTORY    DEVISE  287 

and  his  brother  WilHam  die  in  their  father's  Ufetime,  I  do  not  mean 
him  (John)  to  have  the  property;  but  I  give  it  over  to  strangers." 
That  which  defeats  the  estate  of  John,  is  the  death  of  himself  and 
brother  in  his  father's  Ufetime, — not  the  giving  over  of  the  estate  to 
strangers.  The  reason  why  John's  representatives  cannot  claim  the 
property,  is,  that  his  mother  expressly  declared,  that,  in  the  event 

but  in  ease  B.  shall  leave  no  child,  then  to  C.  or  his  children  surviving  B. 
G.  dies  in  the  lifetime  of  B.  without  leaving  any  child.  It  was  held,  that  the 
estate  already  vested  in  B.  could  not  be  divested,  although  B.  (who  was  liv- 
ing) should  die  without  issue, — that  B.  had  "an  absolute  estate,  subject  to  be 
defeated  by  the  contingent  executory  gift  over,"  of  which  gift  the  object  had 
failed.  It  was  not  attempted  to  be  argued  that  the  contingency  on  which  the 
estate  was  limited  over,  could  be  incoriiorated,  as  a  qualifying  ingredient,  in 
the  primary  gift  to  B.  The  principle  seems  to  be, — that  the  intention  in  favor 
of  the  primary  devisee  is  qualified  for  the  benefit  of  another  object  of  lX)unty, 
and  is  for  that  reason  only,  not  absolute,  and  that  whenever,  and  by  what- 
ever means,  that  object  is  removed,  the  inducement  to  disturb  the  primary 
gift  has  ceased.  The  same  principle  appears  to  apply  equally  to  a  conveyance 
inter  vivos,  and  to  a  posthumous  conveyance  by  devise,  although,  in  the  latter 
case,  the  manifestation  of  the  intention  of  the  disposing  party,  may  be  less 
fettered  by  technical  rules  of  construction. 

Before  the  1  Vict.  c.  26,  §  2o,  if  A.  had  devised  Blackacre  to  B.  in  fee,  on 
a  contingency,  which  happened, — so  that  the  intention  in  favor  of  B.  took 
effect  absolutely — the  devise,  by  the  death  of  B.  in  A.'s  lifetime,  lapsed,  for 
the  benefit  of  the  heir  of  A.,  notwithstanding  the  existence  of  an  operative 
residuary  devise  to  C. ;  for,  every  devise  of  land  being  at  that  time  really 
specific,  the  devise  of  the  residue  was  nothing  more  than  a  devise  of  the  lands 
of  which  A.  was  then  seised,  other  than  Blackacre,  which  A.  supposed  him- 
self to  have  already  disposed  of  in  all  events.  But,  now  Blackacre  would 
pass  under  the  residuary  devise:  such  a  devise  embracing  all  the  realty  from 
any  cause  whatever  not  effectually  disposed  of;  'and  thereby  constituting  a 
universal  hferes  factus.  So,  under  the  old  law,  A.  might  have  expressly 
devised  Blackacre  to  B.  in  every  event  in  which  it  was  not  effectually  devised 
to  C.  and  might  have  thereby  constituted  B.  a  special  ha?res  factus ;  and  the 
question  is,  whether  A.,  by  devising  to  B..  with  a  contingent  executory  devise 
to  C,  would  not  have  sufficiently  declared,  that  intention.  (And  see  Sweet, 
Convey.,  2d  ed.  424-427.) 

Where  there  is  a  devise  by  A.  to  B.  in  fee,  defeasible  on  an  event  which 
happens,  in  favor  of  C.  in  fee.  and  C.  dies  in  the  lifetime  of  A.,  the  only  mode, 
it  is  conceived,  by  which  the  heir  of  A.  could  be  let  in,  would  be.  to  treat  the 
devise  to  B.  as  revoked  by  the  devise  to  C.  becoming  absolute,  and  to  consider 
the  heir  of  A.  as  in  by  the  lapse  of  the  devise  to  C,  instead  of  treating  the 
devise  to  B.  as  ceasing  to  be  defeasible  on  the  failure  of  the  devise  to  C. 
But  A.,  it  is  submitted,  declares,  not  that  if  the  contingency  happens,  B.  shall 
lose  the  estate,  but,  simply,  that  if  the  contingency  happens,  C.  shall  have 
the  estate. — Rep. 

Sugden  on  Powers  (Sth  Ed.)  513,  514: 

"The  case  [Doe  v.  Eyre]  has  been  before  the  Exchequer  Chamber,  and  the 
judgment  has  been  atfirmed  (5  Com.  Bench,  713),  upon  clear  and  satisfactory 
grounds.  The  judges  held  that  the  eldest  son  took  a  vested  defeasible  estate 
in  fee,  and  that  the  appointment  over  alone  was  void.  This  estate  in  the  son 
in  the  event  which  had  happened  was  put  an  end  to,  for  the  condition  by 
which  the  estate  was  to  be  defeated  was,  if  the  two  sons  should  die  in"  their 
father's  lifetime,  and  not  if  they  so  died  and  the  estate  should  by  law  vest 
in  the  father-in-law.  It  would  be  so  upon  an  ordinary  devise  to  one  In  fee, 
and  if  he  died  in  the  lifetime  of  A.  over  to  a  charity,  when  if  the  event  hap- 
pen the  devise  ceases,  although  the  charity  cannot  take. 

"The  reporters  have  added  a  note  to  the  above-mentioned  case,  with  a  view 
to  impeach  the  decision  upon  the  ground  that  as  the  gift  over  to  the  father- 
in-law  could  not  take  effect,  the  gift  to  the  son  was  not  defeated.  After  show- 
ing that  where  there  is  a  devise  in  fee  upon  a  contingency,  the  land  in  the 


288  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

which  happened,  he  should  not  have  it.  How  she  would  have  dis- 
posed of  it,  if  she  had  known  that  she  could  not  give  it  in  the  mode 
proposed  by  her  will,  can  only  be  matter  of  conjecture.  One  thing 
quite  certain,  is  that  she  has  not  expressed  any  intention,  that  in  the 
events  which  have  happened,  John  should  take :  and,  as  he  could  only 
be  entitled  by  virtue  of  an  expressed  intention  in  his  favor,  we  tiiink 
that  he  fails  to  establish  any  right. 
Judgment  afifirmed. 

mean  time  descends  to  the  testator's  heir-at-law,  the  note  proceeds  to  say  that 
in  the  case  of  a  devise  by  A.  to  B.  in  foe  on  a  continireut  event,  and  subject  to 
the  continscnt  devise  to  C.  in  fee,  C.  is  substituted  for  the  heir  of  A.,  and  the 
fee  vested  in  C.  remains  undevested  until  the  devise  to  B.  takes  effect.  In 
each  case  the  intention  Is.  in  the  event  contemplated,  not  simply  that  the  pri- 
mary taker  shall  not  retain  the  land,  but  that  the  land  shall  go  preferably  to 
B.,  and  if  from  any  cause  whatever  B.  is  incapable  of  taking,  the  devesting 
intention  fails,  and  an  observation  which  fell  from  Mr.  Baron  Rolfe  during 
the  argument  is  referred  to  in  support  of  this  position.  Now  in  the  first  place 
there  can  be  no  vested  devise  over  after  a  contingent  devise  in  fee ;  but,  to 
come  to  the  main  point,  the  opinion  of  Rolfe,  Baron,  does  not  supiX)rt  the  posi- 
tion for  which  it  is  quoted.  If  it  did,  yet  as  he  concurred  in  the  judgment, 
any  obiter  dictum  of  his  before  judgment  was  pronounced,  adverse  to  the 
view  of  the  court,  could  not  be  relied  upon.  In  the  course  of  the  argument, 
Parke,  B..  asked  for  a  reference  to  any  case  of  a  limitation  to  one  and  a  con- 
ditional limitation  over  to  a  person  who  could  not  take,  as  a  corporation,  &c., 
to  which  It  was  answered  from  the  bar  that  no  doubt  there  were  some  such 
cases — of  that  class  were  the  cases  of  perpetuity ;  whereuix»n,  Rulfe,  B.,  said, 
that  can  hardly  apply:  the  first  taker  is  clearly  intended  to  take,  and  takes 
forever  unless  the  estate  can  go  over  to  another.  His  observation  therefore 
Is  confined  to  a  case  where  the  fee  is  first  given  and  then  there  is  a  gift  over 
void  for  perpetuity,  in  which  case  the  fee  remains  in  the  first  devisee,  and 
the  gift  over  is  simply  void.  But  this  has  no  bearing  upon  the  principal  ques- 
tion, for  here  the  testatrix  could  by  law  declare  her  intention,  that  upon  the 
happening  of  the  contingency,  the  devise  to  her  son  should  cease,  whereas  in 
the  case  put  at  the  bar  and  answered  by  the  learned  baron,  the  testator  could 
not  by  law  defeat  the  first  devise  in  the  event  which  he  provided  for:  the 
law  forbade  the  devise  over,  and  therefore  the  first  devi.se  remained  unaffect- 
ed by  it.  The  reporters  state  that  in  these  and  similar  cases  it  appears  to  be 
immaterial  from  what  cause  the  executory  devise  over  fails  of  effect,  whether 
by  reason  of  the  contingency  itself  not  arising,  or  of  its  being  too  remote,  or 
of  the  death  of  the  executory  devisee  in  the  lifetime  of  the  testator,  or  of 
the  incapacity  of  the  executory  devisee  to  take;  and  in  support  of  this  view 
the  case  of  Jackson  v.  Noble,  2  Kee.  590,  is  relied  upon.  Mr.  Jarman  (1  Wills, 
2  ed.  783)  had  previously  referred  to  the  same  case  as  an  authority,  that 
where  a  devise  in  fee  is  followed  by  an  executory  limitation  in  fee  in  favor 
of  an  object  or  class  of  objects  not  in  esse,  and  who  in  event  never  came  in- 
to existence,  the  first  devise  remains  absolute.  And  so  he  adds,  if  the  ex- 
ecutory devise  were  void  on  account  of  its  remoteness  or  from  any  other 
cause,  the  prior  devise  would  be  absolute.  This  we  have  seen  was  ruled  oth- 
erwise by  the  Exchequer  Chamber.  The  case  of  .Tackson  v.  Noble  was  decid- 
ed not  on  any  general  rule,  but  on  tlie  ground  that  looking  at  all  the  devises 
the  .estate  was  not  intended  to  go  over  in  the  event  which  happened.  It 
would  be  out  of  place  to  enter  here  into  an  examination  of  the  case  of  Jack- 
son V.  Noble ;  but  if  it  cannot  be  supported  upon  tlie  intention  as  collected  by 
the  court,  it  must  be  considei'ed  as  opposed  to  the  later  decision  in  the  Ex- 
chequer Chamber,  which  aflirmed  the  judgment  of  the  Common  Pleas.  The 
point  upon  the  devise  over  appears  to  have  lieen  there  decided  on  solid  legal 
grounds.  The  point  ruled  is  that  an  absolute  appointment  to  an  object  of  the 
power  with  an  e.Kccutory  gift  over  in  a  given  event  to  a  stranger  will  cease 
upon  the  hapiiening  of  the  event  although  the  appointee  over  is  incapable  of 
taking  the  estate." 


Ch.  9)  FAILURE   OF   EXECUTORY  DEVISE  289 

ROBINSON  V.  WOOD. 
(Court  of  Chancery,  1858.     27  Law  J.  Ch.  72G.) 

John  Dales  Allison,  by  his  will,  dated  the  3d  of  September,  1840, 
devised  all  his  freehold,  customary  and  copyhold  estates,  whatsoever 
and  wheresoever,  whereof  or  wherein  he  or  any  person  in  trust  for 
him  was  seised  or  possessed,  or  to  which  he  was  entitled  for  any  es- 
tate of  inheritance,  or  over  which  he  had  or  might  have  any  power  of 
appointment  or  disposition,  or  in  which  he  had  any  devisable  interest, 
whether  in  possession,  reversion,  remainder  or  expectancy,  to  hold  the 
same  to  them,  their  heirs  and  assigns,  upon  trust,  as  soon  as  conven- 
iently might  be  after  his  decease,  to  sell  such  part  of  his  real  estate 
as  his  trustees  should  think  fit  or  needful,  and  pay  such  of  his  debts 
as  his  personalty  was  insufficient  to  discharge,  and  subject  thereto  to 
receive  the  rents  of  the  remaining  part  of  the  real  estate,  and  pay  and 
apply  the  same  for  the  m.aintenance,  education  and  bringing  up  of  his 
daughter,  Ann  Dales  Allison,  otherwise  Ann  Dales,  born  to  him  by 
his  wife,  Harriet  Allison,  until  she  attained  the  age  of  twenty-one 
years;  and  when  his  said  daughter  should  attain  the  age  of  twenty- 
one  years,  upon  further  trust  to  convey,  assign,  transfer  and  assure  the 
said  residuary  freehold  and  other  real  estate  and  property,  subject  as 
aforesaid,  unto  and  to  the  use  of  his  said  daughter,  her  heirs  and  as- 
signs forever.  And  in  case  his  said  daughter  should  happen  to  depart 
this  life  under  the  .ige  of  twenty-one  years,  leaving  lawful  issue  her 
surviving,  then  he  directed  that  his  said  trustees  or  trustee  for  the 
time  being  should  stand  possessed  of  the  said  residuary  real  estate, 
upon  trust  for  the  absolute  use  and  benefit  of  such  issue,  his,  her  or 
their  heirs  and  assigns,  as  tenants  in  common ;  but  (in  case  his  said 
daughter  should  happen  to  depart  this  life  under  the  age  of  twenty- 
one  years  without  leaving  lawful  issue  her  surviving,  then  upon  trust 
to  receive  the  rents,  income  and  profits  of  his  said  estates  and  prop- 
erty, and  equally  divide  the  same  between  his  said  wife,  if  she  should 
be  then  his  widow  and  unmarried,  and  Mary  Allison,  share  and  share 
alike,  with  benefit  of  survivorship  between  them  during  their  joint 
lives,  and  after  the  decease  of  the  survivor  upon  trust  to  sell  the  said 
residuary  freehold  and  other  real  estate  and  property,  and  pay  the 
money  to  arise  from  such  sale  to  the  treasurer  of  the  Primitive  Metho- 
dist Society. 

The  testator  died  in  September,  1840,  leaving  Ann  Dales  Allison,  his 
only  child,  him  surviving.  The  testator's  widow  and  ]\Iary  Allison 
both  died  in  the  lifetime  of  the  daughter,  Ann  Dales  Allison,  who  died 
in  March,  1856,  under  twenty-one  years  of  age,  without  having  been 
married. 

The  plaintiff,  who  was  the  heir-at-law  of  Ann  Dales  Allison,  filed 
the  bill  in  this  cause  claiming  to  be  entitled  to  the  estates  devised  by 
the  testator,  alleging  that  the  devise  to  the  testator's  daughter  was  a 
4  Kales  Pbop. — 19 


290  CONSTRUCTION  OP  LIMITATIONS  (Part  2 

vested  estate  in  fee  simple,  and  that  as  the  charitable  gift  to  the  Primi- 
tive Methodist  Society  was  void  under  the  Statute  of  Mortmain,  he 
was  entitled  as  her  heir-at-law. 

The  defendants  were  the  trustees  of  the  testator's  will,  who  claimed 
the  real  estates  as  undisposed  of. 

KiNDERSLEY,  V.  C.  This  is  a  case  of  considerable  importance. 
There  are  two  questions  of  construction  raised  and  they  are  questions 
of  common  law  without  any  ingredient  of  equity  except  that  there  is  a 
devise  to  trustees,  and  therefore  the  interests  are  equitable,  and  what- 
ever construction  a  court  of  law  would  put  upon  this  instrument,  a 
court  of  equity  would  put  the  same.  The  question  then  is,  first,  wheth- 
er there  is  by  the  prior  part  of  these  limitations  an  absolute  vested  es- 
tate in  fee  simple  given  to  the  testator's  daughter.  It  is  not  necessary 
for  the  determination  of  this  case  to  decide  that  question ;  but  my  im- 
pression is,  that  it  is  a  vested  estate  in  fee  simple  in  the  daughter,  Ann 
Dales  Allison,  liable  of  course  to  be  divested.  It  is  sufficient  however 
to  say,  that  I  will  assume  in  favor  of  the  plaintiff  that  the  testator's 
daughter  took  such  absolute  vested  estate  in  fee  simple  in  the  first  in- 
stance, although  she  did  not  live  to  attain  the  age  of  twenty-one  years. 
Then  the  next  question  is,  whether  the  estate  was  divested  by  virtue  of 
the  subsequent  clauses.  Those  clauses  provide  for  the  divesting  of 
the  estate  in  certain  events :  first,  in  the  event  of  her  dying  under 
twenty-one,  leaving  issue;  and  the  other,  of  her  dying  under  twenty- 
one  without  leaving  issue,  which  is  the  event  that  has  happened.  Now, 
of  course,  as  this  was  a  devise  to  a  charity,  it  was  void  under  the  Stat- 
ute of  Mortmain,  9  Geo.  2,  c.  36,  §§  1  and  2.  The  Statute  directs, 
that  no  lands  shall  be  given  in  trust,  or  for  the  benefit  of  any  char- 
itable uses  whatever,  except  in  a  particular  manner.  And  then  fol- 
lows the  third  clause  directing  that  all  gifts  of  any  lands,  tenements  or 
hereditaments  to  or  in  trust  for  any  charitable  uses  whatever,  which 
shall  be  made  otherwise  than  in  that  particular  manner,  shall  be  ab- 
solutely and  to  all  intents  and  purposes  null  and  void.  It  has  been 
argued,  that  the  entire  gift  over  being  void,  there  is  nothing  to  divest 
the  estate  from  the  original  taker,  and  I  confess  that  I  have  much  dif- 
ficulty in  getting  over  that  reasoning ;  but  I  find  that  the  precise  ques- 
tion has  been  brought  before  the  Court  of  Common  Pleas  and  the 
Court  of  Exchequer,  and  it  has  been  held  that,  where  there  is  a  gift 
over  purporting  to  divest  a  prior  estate  in  fee  simple,  if  the  devise  over 
fails  for  any  reason,  the  intention  of  the  testator  must  be  taken  to  have 
been  that  the  devise  should  nevertheless  operate  to  carry  the  estate 
over.  Now,  whatever  opinions  I  may  entertain  upon  the  point,  it  is 
not  for  me,  in  the  exercise  of  my  functions,  to  overturn  that  decision. 
It  appears  to  me,  that  not  only  is  every  particular  the  same  in  the  case 
of  Doe  V.  Eyre,  5  Com.  B.  Rep.  713,  but  the  arguments  there  used  are 
entirely  adverse  to  the  claim  of  the  plaintiff,  and  I  must  presume  that 
the  observations  used  are  to  be  taken  as  the  expression  of  opinion  of 
the  whole  Court  of  Exchequer  Chamber.     If  that  were  the  case,  it 


Ch.  0)  FAILURE   OF   EXECUTORY   DEVISE  291 

must  follow  as  a  matter  of  course,  that  if  the  case  now  before  the 
court  were  decided  by  the  same  judges,  their  decision  would  be  ad- 
verse to  the  case  of  the  plaintiff.  How,  therefore,  can  I  take  upon 
myself  to  say  that  the  decision  was  wrong?  If  there  had  been  a  series 
of  decisions  the  other  way,  one  would  have  to  be  weighed  against  the 
other;  but  what  are  the  cases  cited,  and  suggested  as  being  adverse? 
First,  there  is  the  case  of  a  gift  by  will  of  property,  or  a  share  of 
property,  to  a  child,  importing  an  absolute  gift,  and  directing  subse- 
quently that  the  share  should  be  settled ;  that  does  not  bear  upon  the 
present  case,  because  that  was  not  a  case  which  turned  on  divesting 
upon  a  contingency.  There  was  no  contingency  at  all ;  the  testator 
stated  that  he  meant  to  give  an  absolute  interest,  which  however  he 
wished  to  be  modified,  in  order  that  the  children  might  have  it;  but 
if  there  were  no  children,  the  original  gift  was  to  prevail.  Those  are 
not  cases  raising  the  same  question.  The  only  other  case  is  that  of 
Jackson  v.  Noble,  which  it  is  extremely  difficult  to  reconcile  with  Doe 
V.  Eyre,  by  reason  of  the  language  there  used ;  but  when  it  is  looked 
into,  it  will  be  found  that  the  ground  of  the  decision  was,  that  the 
contingency  there  contemplated,  on  which  the  gift  over  was  to  take 
effect,  had  never  happened.  Of  course,  if  that  was  the  ground  upon 
which  the  decision  was  founded,  it  does  not  touch  the  present  ques- 
tion ;  and  whether  that  decision  was  right  or  wrong  is  of  no  moment, 
because,  at  all  events,  it  is  not  a  decision  adverse,  and  therefore  upon 
the  state  of  the  pronounced  opinions,  it  is  impossible  to  say  that  the 
gift  over  is  entirely  inoperative ;  and  whatever  my  opinion  might  have 
been  but  for  the  case  of  Doe  v.  Eyre,  and  I  confess  it  is  extremely 
doubtful  whether  I  should  have  been  of  the  opinion  there  expressed, 
I  feel  myself  under  the  necessity  of  coming  to  the  same  conclusion. 
If  I  had  not  been  precluded  by  law,  I  should  probably  have  submitted 
this  question  to  the  very  court  who  decided  Doe  v.  Eyre,  for  their 
opinion ;  and  if  I  had  done  so,  I  cannot  doubt  but  that  they  would 
have  decided  in  conformity  with  their  previous  decision.  I  must  there- 
fore dismiss  this  bill;  but  having  regard  to  the  nature  of  the  case,  I 
shall  dismiss  it  without  costs.® 


O'MAHONEY  v.  BURDETT. 

(House  of  Lords,  1874.    L.  R.  7  Eng.  &  Ir.  App.  Cas.  3S8.) 
See  ante,  page  235,  for  a  report  of  the  case.'^ 

6  See  Hurst  v.  Hurst,  21  Ch.  Div.  278,  284-286,  290,  293,  294  (1882). 

7  Gray,  Rule  against  Perpetuities  (2d  and  3d  Eds.)  §§  783-788 ;  Drummond's 
Ex'r  V.  Drummond,  26  N.  J.  Eq.  (11  C.  E.  Green)  234  (1875), 

On  the  Effect  of  the  Failure  of  Subseqlejvt  Interests  for  Remoteness. 
— See  Gray,  Rule  against  Perpetuities,  §§  247,  248 ;  Barrett  v.  Barrett,  255  III. 
332,  99  N.  E.  625  (1912). 


292  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

SECTION  2.— FAILURE   OF   PRECEDING  INTEREST 


JONES  V.  WESTCOMB. 

(Court  of  Chancery,  1711.     1  Eq.  Cas.  Abr.  245,  pi.  10.) 

A.,  possessed  of  a  long  term  for  years,  by  will  devised  it  to  his  wife 
for  life,  and  after  her  death  to  the  child  she  was  then  enseint  with; 
and  if  such  child  died  before  it  came  to  twenty-one,  then  he  devised 
one  third  part  of  the  same  term  to  his  wife,  her  executors  and  admin- 
istrators, and  the  other  two  thirds  to  other  persons,  and  made  his 
wife  executrix  of  his  will,  and  died ;  and  the  bill  was  brought  against 
her  by  the  next  of  kin  to  the  testator,  to  have  an  account  and  dis- 
tribution of  the  surplus  of  his  personal  estate  not  devised  by  the  will ; 
and  two  questions  were  made:  1st,  whether  the  devise  to  the  wife  of 
one  third  part  of  the  term  was  good,  because  it  happened  she  was 
not  then  enseint  at  all ;  and  so  the  contingency,  upon  which  the  devise 
to  her  was  to  take  place,  never  happened;  the  other  question  was, 
whether  this  term,  being  part  of  the  personal  estate,  and  expressly 
devised  to  her  for  life,  with  such  other  contingent  interest  on  the 
death  of  the  supposed  enseint  child  before  twenty-one,  should  shut 
her  out  from  the  surplus  of  the  personal  estate,  which  belonged  to 
her  as  executrix,  and  so  the  surplus  go  in  a  course  of  administration^ 
to  be  distributed  amongst  the  plaintiffs,  as  next  of  kin.  As  to  the 
first  point.  Lord  Keeper  [Lord  Harcourt]  delivered  his  opinion, 
that  though  the  wife  was  not  enseint  at  the  time  of  the  will,  yet  the 
devise  to  her  of  such  third  part  of  the  term  was  good ;  and  as  to  the 
other  point  dismissed  the  plaintift's  bill,  and  so  let  in  the  executrix  to 
the  surplus  of  the  personal  estate,  notwithstanding  the  devise  to  her 
of  part,  as  aforesaid.^ 

8  See  Murray  v.  Jones,  2  V.  &  B.  313  (1S13) ;  Mackinnon  v.  Sewell,  2  M.  & 
K.  202  (1S33) ;  Gulliver  v.  Wickett,  1  Wils.  105 ;  Meadows  v.  Parry,  1  V.  & 
B.  12-1. 

"Frogmorton  v.  Ilolyday  [3  Burr.  IGIS]  was  a  case  similar  in  character  to 
that  of  Jones  v.  Westcomb,  and  what  Lord  Mansfield  says  is  this:  'A  question 
applicable  to  this  part  of  the  argument  was  pleaded  in  the  days  of  ancient 
Home  by  Screvola  and  Crassus,  in  the  famous  cause  between  Curius  and 
Coponius,  and  was  much  agitated  in  modern  times  in  the  courts  of  West- 
minster Hall,  in  the  case  of  Jones  v.  Westcomb.  A  man,  taking  for  granted 
that  his  wife  was  with  child,  devised  his  estate  to  the  child  his  wife  was 
enceinte  of,  and  if  such  child  died  under  age  then  he  devised  it  over.  The 
w^oman  was  not  with  child.  The  question  was,  'whether  the  devisee  over 
should  take;'  Lord  Mansfield  (with  a  little  sarcasm  perhaps)  says,  'the  Roman 
tribunals  at  once  and  the  English  at  last,  finally  determined  that  the  intent, 
though  not  expressed,  must  be  construed  to  give  the  estate  to  the  substitute, 
unless  a  posthumous  child  lived  to  be  of  age  to  dispose  of  it;  consequently, 
no  posthumous  child  having  ever  existed,  the  substitute  was  entitled.' " 


Ch.  9)  FAILURE    OF   PRECEDING   INTEREST  293 

WILLING  V.  BAINE. 
(Court  of  Chancery,  1731.     3  P.  Wms.  113.) 

A.  by  his  will  devised  £200  apiece  to  his  children,  payable  at  their 
respective  ages  of  twenty-one;  and  if  any  of  them  died  before  their 
age  of  twenty-one,  then  the  legacy  given  to  the  person  so  dying,  to 
go  to  the  surviving  children.  He  devised  the  residue  of  his  personal 
estate  to  A.,  B.  and  C.  (being  three  of  his  children),  and  having  made 
them  executors,  died. 

One  of  the  children  died  in  the  testator's  lifetime,  and  after  the 
testator's  death  one  of  the  executors  and  residuary  legatees  died. 
Upon  this  two  questions  arose,  first,  whether  the  legacy  of  the  child 
that  died  in  the  life  of  the  testator  should  go  to  the  surviving  chil- 
dren, or  should  be  a  lapsed  legacy,  and  sink  into  the  surplus?  2dly, 
whether  when  one  of  the  executors  and  residuary  legatees  died,  his 
share  of  the-  residuum  belonged  to  his  executor,  or  to  the  surviving 
residuary  legatees  ?  ® 

As  to  the  first,  it  was  objected  to  be  the  constant  rule,  that  if  the 
legatee  dies  in  the  life  of  the  testator,  this  legacy  lapses,  which  took 
in  the  present  case ;  for  here  the  child,  the  legatee,  died  in  the  Hfe- 
time  of  the  testator;  that  it  was  true,  there  was  a  devise  oyer  of  the 
legacy,  in  case  any  of  the  children  should  die  before  their  age  of 
twenty-one ;  but  such  clause  could  not  take  place  in  the  present  case, 
because  there  can  be  no  legacy,  unless  the  legatee  sur\ives  the  testa- 
tor, the  will  not  speaking  till  then ;  wherefore  this  must  only  be  in- 
tended, where  the  legatee  survives  the  testator,  so  that  the  legacy 
vests  in  him,  and  then  he  dies  before  his  age  of  twenty-one. 

On  the  other  side  it  was  said  and  resolved  by  the  court  [Lord  King, 
C]  that  the  rule  is  true,  that  where  the  legatee  dies  in  the  life  of  the 
testator,  his  legacy  lapses  (i.  e.),  it  lapses  as  to  the  legatee  so  dying; 
but  that  in  this  case  the  legacy  was  well  given  over  to  the  surviving 
children ;  for  which  2  Vern.  207,  Miller  v.  Warren,  was  cited,  where 
there  was  a  devise  of  a  legacy  of  i  1,500  to  A.  payable  at  his  age  of 
twenty-one,  and  if  A.  died  before,  then  to  B.  On  A.'s  dying'in  the 
lifetime  of  the  testator,  though  this  was  never  a  legacy  with  respect 
to  A.,  but  lapsed  as  to  him,  by  his  dying  in  the  Hfe  of  the  testator, 
still  it  was  held  to  be  well  devised  over.  So  in  the  case  in  2  \^ern. 
611,  of  Ledsome  v.  Hickman.  In  like  manner,  if  land  were  devised 
to  A.  and  if  A.  should  die  before  twenty-one,  then  to  B.  on  A.'s  dying 
in  the  life  of  the  testator,  and  before  twenty-one,  this  would  be  a 
good  devise  over  of  the  land  to  B. 

9  That  part  of  the  case  which  concerns  this  second  point  is  omitted. 


294  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

TARBUCK  V.  TARBUCK. 

(Court  of  Chancery,  1835.     4  L.  J.  [N.  S.]  Ch.  129.)  lo 

The  testator  by  his  will  devised  certain  hereditaments  unto  his  son 
James  for  the  term  of  his  natural  life,  without  impeachment  of  waste, 
and,  immediately  after  his  decease,  then  unto  and  equally  amongst  all 
the  children  of  his  said  son  James,  share  and  share  alike,  and  to  their 
respective  heirs  and  assigns  forever  as  tenants  in  common ;  and  if  but 
one  only  child,  then  the  said  testator  gave  and  devised  the  same  to  such 
only  child,  his  or  her  heirs  or  assigns  forever,  chargeable  as  therein 
mentioned.  And  the  said  testator  also  gave  and  devised  all  his  other 
messuages  and  dwelling-houses,  buildings,  lands,  and  hereditaments, 
whatsoever  and  wheresoever,  unto  his  son  Jonathan,  for  and  during 
the  term  of  his  natural  life,  without  impeachment  of  waste ;  and  from 
and  after  his  decease,  then  unto  and  equally  amongst  all  the  children 
of  his  said  son  Jonathan,  lawfully  to  be  begotten,  share  and  share 
alike,  or  to  their  respective  heirs  and  assigns  forever,  and  for  and  dur- 
ing all  his,  the  said  testator's  term  and  interest  therein  respectively, 
as  tenants  in  common ;  and  if  but  one  only  child,  then  the  said  tes- 
tator gave  and  devised  the  same  to  such  only  child,  his  or  her  heirs  or 
assigns  forever,  and  for  and  during  all  his  term  and  interest  therein 
respectively,  chargeable  as  therein  mentioned ;  and  in  case  his  said  son 
James  should  happen  to  die  without  leaving  lawful  issue,  then  he  gave 
and  devised  the  said  hereditaments,  so  devised  to  him  for  his  life  as 
aforesaid,  unto  his,  the  said  testator's,  son  Jonathan,  his  heirs  and  as- 
signs forever;  and  in  case  his  said  son  Jonathan  should  happen  to 
die  without  leaving  lawful  issue,  then  the  said  testator  gave  and  de- 
vised the  said  hereditaments  so  devised  to  him  for  his  life  as  aforesaid, 
unto  his,  the  said  testator's,  son  James,  his  heirs  and  assigns  forever, 
or  for  and  during  all  his,  the  said  testator's,  term  and  interests  therein 
respectively;  but  if  both  his,  the  said  testator's,  said  sons,  James  and 
Jonathan,  should  happen  to  die  without  leaving  lawful  issue,  then  the 
said  testator  gave  and  devised  the'  whole  of  the  said  messuages,  her- 
editaments, &c.,  equally,  unto  and  amongst  all  his,  the  said  testator's, 
nephews  and  nieces,  share  and  share  alike,  and  to  their  respective  heirs 
and  assigns  forever,  or  for  and  during  all  his,  the  said  testator's,  es- 
tate, term,  and  interest  therein  respectively,  as  tenants  in  common. 

At  the  date  of  the  will,  neither  of  the  testator's  sons  had  any  chil- 
dren, and  tliey  both  died  in  the  lifetime  of  the  testator.  James,  one 
of  the  testator's  sons,  left  one  child,  a  son,  who  survived  his  father 
James  and  his  uncle  Jonathan,  but  who  subsequently  died  in  the  life- 
time of  the  testator,  and  Jonathan  died  without  children.  The  tes- 
tator died,  seised  of  freehold  estates,  and  possessed  of  leasehold  for 
lives  and  years,  all  of  which  were  included  in  the  above  devise;    and 

10  Part  only  of  the  case  is  here  given. 


Ch.  9)  FAILURE    OF   PRECEDING   INTEREST  295 

the  question  was,  whether,  under  the  circumstances,  the  devise  over 
to  the  nephews  and  nieces  took  effect. 

Thi5  Master  of  the  Rolls  [Sir  C.  C.  Pepys].  It  appears  that 
the  testator's  son  James  died  in  1814,  leaving  a  son,  James ;  the  tes- 
tator's son  Jonathan  died  in  1824  without  issue.  James,  the  son  of 
the  testator's  son  James,  died  in  1824,  and  the  testator  himself  died 
in  1831 ;  so  that  the  devises  in  favor  of  the  testator's  sons,  James  and 
Jonathan,  and  their  children,  lapsed  and  failed.  On  the  part  of  the 
nephews  and  nieces  it  was  contended,  that,  in  the  events  which  have 
happened,  they  are  entitled  under  the  devise  to  them.  On  the  part  of 
the  heir-at-law  of  the  testator,  it  was  contended,  that  as  the  events  have 
not  happened  upon  which  alone  the  nephews  and  nieces  were  to  be 
entitled,  the  devise  to  them  cannot  take  effect,  and  that  therefore  there 
is  an  intestacy. 

The  first  question  to  be  considered  is.  What  estates  would  James  and 
Jonathan  have  taken,  had  they  survived  the  testator?  [The  discussion 
of  this  first  question  is  omitted.]  I  am  therefore  of  opinion,  that  if 
James  and  Jonathan  had  survived  the  testator,  they  would  have  taken 
estates  for  life,  with  remainder  to  their  children  in  fee,  but  with  ex- 
ecutory devises  over,  in  the  event  of  their  leaving  no  children  at  the 
times  of  the  death  of  the  respective  tenants  for  life;  and  if  this  be 
the  true  construction  of  the  devise,  it  is  clear  the  gift  to  the  nephews 
and  nieces  could  never  have  taken  effect,  for  that  gift  is  only  to  take 
effect  in  the  event  of  James  and  Jonathan  dying  without  lawful  issue, 
that  is,  children  to  the  above  construction,  and  James,  at  the  time  of 
his  death,  had  a  son,  namely,  James,  who  survived  both  his  father  and 
his  uncle  Jonathan. 

The  only  remaining  question  is,  whether  the  circumstance  of  James, 
and  his  son,  and  Jonathan,  having  died  in  the  testator's  lifetime,  makes 
any  difference.  The  distinction  is  very  nice  between  those  cases,  in 
which  executory  limitations  have  been  held  not  to  be  defeated  by  the 
failure  of  a  prior  estate,  as  in  Avelyn  v.  Ward,  1  Ves.  Sen.  420;  Jones 
v.  Westcomb,  Prec.  Chanc.  316;  Murray  v.  Jones,  2  Ves.  &  Bea.  313; 
and  the  opposite  class  of  cases,  in  which  it  has  been  held,  that  subse- 
quent limitations  do  not  arise,  although  the  preceding  estates  fail,  be- 
cause the  event  in  which  the  estate  was  to  go  over  had  not  arisen.  The 
principle,  however,  is  well  established,  although  there  has  sometimes 
been  some  confusion  in  the  application  of  it.  It  is,  as  I  conceive,  clear, 
that  if  James  and  Jonathan  had  survived  the  testator,  the  devise  to  the 
nephews  and  nieces  could  not  have  taken  eff'ect  under  the  circum- 
stances which  happened;  and  it  is,  I  think,  established  by  authority, 
that  the  situation  of  the  parties  is  not  altered  by  their  having  died  be- 
fore the  testator.  Williams  v.  Chitty,  3  Ves.  545  ;  Calthorpe  v.  Gough, 
3  Bro.  C.  C.  394,  n. ;  Doo  v.  Brabant,  3  Bro.  C.  C.  392 ;  s.  c.  4  T.  R. 
706;  and  Humberstone  v.  Stanton,  1  Ves.  &  Bea.  385,  are  decided 
cases  on  this  point.    I  am  therefore  of  opinion  that  the  event,  on  which 


296  CONSTRUCTION  OP  LIMITATIONS  (Part  2 

the  nephews  and  nieces  were  to  take,  did  not  happen;  and  that  con- 
sequently there  is  an  intestacy.  The  same  declaration  with  regard  to 
the  leaseholds  follows  of  course.^^ 


HUGHES  V.  ELLIS. 

(Court  of  Cliancery,  1855.    20  Beav.  193.) 

The  testator,  by  his  will,  dated  in  1823,  expressed  himself  as  fol- 
lows: "I  direct  that  all  my  just  debts,  funeral  expenses,  the  expenses 
of  proving  this  my  will,  and  all  other  expenses  attendant  thereon  be 
first  paid  by  my  executrix,  hereinafter  named,  out  of  my  personal  es- 
tate, and  from  and  after  the  payment  of  the  same,  I  give  and  be- 
queath the  remainder  of  all  my  personal  estate  and  effects,  of  what 
nature  or  kind  the  same  may  be,  in  manner  following:  videlicet — I 
give  and  bequeath  to  my  mother,  Anne  Davies,  the  sum  of  one  shilling. 
Also,  I  give  and  bequeath  to  my  brother  Hugh,  and  my  sisters,  Mar- 
garet, Anne,  Elizabeth,  Sarah,  and  Mary  each  the  sum  of  one  shilling ; 
I  give  and  bequeath  to  my  dear  wife  Mary  the  rest,  residue,  and  re- 
mainder of  all  my  estate,  whether  leasehold,  real  or  personal,  of  what 
nature,  kind,  or  quality  soever  the  same  may  be,  and  to  her  executors, 
administrators  and  assigns.  But  if  my  said  wife  should  die  intestate, 
then  my  will  is,  that  the  said  remainder  of  my  estate  shall  be  be- 
queathed to  my  nephew  David  Hughes  (son  of  my  brother  William), 
and  to  ^Margaret  Evans  (niece  of  my  wife's  first  husband),  share  and 
share  alike,  their  heirs  and  executors."  He  appointed  his  wife  sole 
executrix. 

Mary  Hughes,  the  wife  of  the  said  testator,  died  intestate,  on  the 
16th  of  September,  1854,  in  the  lifetime  of  the  said  testator,  and  who 
died  on  the  23d  of  October,  1854. 

The  plaintiff  Margaret  Hughes  (formerly  Margaret  Evans)  by  this 
bill  claimed  a  moiety  of-  the  testator's  residuary  estate,  under  the  be- 
quest over  to  her  and  David  Hughes. 

To  this  bill  the  defendants  Mrs.  Ellis  and  Mrs.  Parry  demurred. 

The;  Master  oe  the  Rolls  [Sir  John  Romilly].  My  opinion  of 
this  will  is,  that  the  testator  intended  to  give  his  wife  an  absolute  in- 
terest in  this  propert}^,  with  the  power  of  absolutely  disposing  of  it 
either  in  her  lifetime  or  by  will.  If  she  did  not  dispose  of  it  in  her  life 
or  by  will,  he  then  intended  these  gifts  over  to  take  effect.  No  doubt 
the  result  is,  that  the  gifts  over  could  not  take  effect,  for  the  wife 
took  an  absolute  interest,  and  if  she  died  without  a  will,  the  residue 
would  go  to  her  next  of  kin.  She  died,  however,  in  the  life  of  the  tes- 
tator, and  I  am  of  opinion  that  a  lapse  took  place;  the  testator  might 
have  said  "intestate  in  my  life,"  but  the  simple  word  "intestate"  ex- 
cludes the  construction  that  the  gift  over  was  intended  by  the  testator 

11  Accord:     Brookmau  v.  Smith,  L.  R.  6  Ex.  2'Jl ;    L.  R.  7  Ex.  271  (1&72). 


Ch.  9)  FAILURE    OF   PRECEDING    INTEREST  297 

to  provide  against  a  lapse,  because  if  she  had  died  in  his  lifetime,  be- 
ing a  feme  covert,  she  had  no  power  to  do  any  testamentary  act,  by 
making  a  will,  and  she  therefore  must  necessarily  have  died  intestate. 

I  am  of  opinion  that  he  intended  to  give  her  an  absolute  interest  in 
the  property,  and  if  she  did  not  dispose  of  it  by  will,  the  gift  over 
was  to  take  effect,  and  both  upon  principle  and  on  the  authorities  which 
have  been  cited,  such  a  gift  over  could  not  take  effect. 

The  difficulty  has  been  created  by  the  testator;  his  estate  ought, 
if  possible,  to  bear  the  costs. ^^ 

12  In  Greated  v.  Groated,  26  Beav.  621  (1859),  there  was  a  devise  to  the  tes- 
tator's children  (nauiiug  them)  in  fee.  hut  if  any  of  them  died  before  having 
heirs  of  their  body  or  (whicli  the  court  construed  "and")  making  a  particular 
disposition  of  his  share,  then  to  the  survivors.  Two  children  died  in  the 
lifetime  of  the  testator,  but  the  gift  over  to  tlie  survivors  did  not  take  effect. 
See.  also.  In  re  .Jenkins'  Ti-usts,  2.3  L.  R.  (Ir.)  162 :  Stretton  v.  Fitzgerald,  23 
L.  R.  (Ir.)  310.    But  cf.  Eaton  v.  Straw,  IS  N.  H.  320,  333. 

In  In  re  Stringer's  Estate,  6  Ch.  D.  1,  14,  15  (1S7T)  James,  L.  .J.,  said:  "It 
is  settled  by  authority  that  if  you  give  a  man  some  property,  real  or  person- 
al, to  l)e  his  absolutely,  then  you  cannot  by  your  will  dispose  of  that  proper- 
ty which  becomes  his.  You  cannot  say  that,  if  he  does  not  spend  it,  if  he  does 
not  give  it  away,  if  he  does  not  Avill  it.  that  which  he  happened  to  have  in 
his  pos.session,  or  in  his  drawer,  or  in  his  pocket  at  the  time  of  liis  death, 
shall  not  go  to  liis  heir-at-law  if  it  is  realty,  or  to  his  next  of  kin  if  it  is  per- 
sonalty, or  to  his  creditors  who  may  have  a  paramount  claim  to  it.  You  can- 
not do  that  if  you  once  vest  property  absolutely  in  the  first  donee.  That  is 
because  that  wliich  is  once  vested  in  a  man,  and  vested  de  facto  in  him.  can- 
not be  taken  from  him  out  of  the  due  course  of  devolution  at  his  death  by 
any  expression  of  wish  on  the  part  of  the  original  testator.  But  that,  I  should 
have  thought,  did  not  apply  to  a  case  where  the  original  gift  never  did  take 
effect  at  all,  because  tlien  there  is  no  repugnance.  There  may  be  repugnance 
between  the  gift  over  and  the  gift  intended  to  be  made,  but  I  am  not  quite 
sure  that  that  ought  to  have  applied  to  a  case,  supposing  the  point  arose, 
where  there  was  simply  the  death  of  the  person  creating  a  lapse.  True,  there 
are  two  authorities  cited  of  the  late  Master  of  the  Rolls,  Hughes  v.  Ellis,  20 
Beav.  192,  and  Created  v.  Created,  26  Beav.  621,  one  of  which  seems  to  me 
very  similar  to  this  case.  I  think,  if  it  were  necessary  for  us  to  deal  with 
these  cases,  I  should  be  slow  to  express  my  assent  to  them." 

\Yhere  personal  proi)erty  is  bequeathed  to  A.  and  the  heirs  of  his  body 
(which,  as  is  well  settled,  is  an  absolute  gift  to  A.)  and  in  case  of  failure  of 
issue  of  A.,  then  to  B.,  if  A.  survive  the  testator,  the  gift  over  to  B.  is  void  for 
remoteness,  because  on  an  indefinite  failure  of  issue.  But  if  A.  die  in  the  life 
of  the  testator  without  issue,  then  the  gift  over  is  not  void  for  remoteness, 
and  will  take  effect.  In  re  Lo^^■man,  L.  R.  [1S95]  2  Ch.  34S  (overruling  dicta 
to  the  contrary  in  Harris  v.  Davis,  1  Coll.  418,  and  Hughes  v.  Ellis,  supra,  and 
Greated  v.  Created,  supra). 

Theobald  on  Wills  (7th  Ed.)  648:  "It  would  seem  that  a  gift  of  consumable 
articles  to  A.  for  life,  remainder  to  B.,  would  not  lapse  by  A.'s  death  in  the 
testator's  lifetime,  notwithstanding  Andrew  v.  Andrew,  1  Coll.  686,  690." 

On  the  Effect  of  the  Failure  of  a  Preceding  Interest  for  Remoteness 
UPON  THE  Subsequent  Limitations. — See  Beard  v.  Westcott,  5  Taunt.  393,  5 
B.  &  Aid.  801,  T.  &  R.  25  (1813) ;  Monypenny  v.  Bering,  2  De  G.,  M.  &  G.  145 
(1S52) ;    Gray,  Rule  against  Perpetuities,  §§  251-257. 


298  CONSTRUCTION  OF  LIMITATIONS  (Part  2 


SECTION  3.— ACCELERATION 


EAVESTAFF  v.  AUSTIN. 

(Court  of  Chancery,  1854.    19  Beav.  591.) 

The  testatrix  devised  and  bequeathed  all  her  real  and  personal  es- 
tate to  trustees,  in  trust  to  invest  i4,50O,  and  pay  the  interest  thereof 
to  her  brother,  William  Johnson,  during  his  life,  and  in  case  of  his 
wife,  Harriet  Johnson  surviving  him,  she  directed  her  trustees,  im- 
mediately thereupon,  to  set  apart  a  sufficient  sum  out  of  the  £4,500  to 
pay  Harriet  Johnson,  during  her  life,  out  of  the  dividends,  &c.,  an 
annuity  of  ilOO;  and  that  the  remainder  of  the  sum  of  £4,500  should, 
immediately  upon  her  brother's  decease,  be  equally  divided  between 
her  nieces,  Elizabeth  Austin  and  Mary  Austin.  She  then  proceeded 
thus: 

"And  I  also  direct,  that  in  case  my  said  brother  shall  survive  his 
said  wife  [which  happened],  in  that  event,  the  same  proportion  of  the 
£4,500  as  I  have  directed  to  be  divided  between  my  said  nieces,  Eliza- 
beth Austin  and  Mary  Austin,  shall,  in  that  event,  immediately  after 
the  decease  of  my  brother,  in  the  same  way,  be  equally  divided  between 
them.  And  I  further  direct,  that  such  proportions  of  the  £4,500  as 
shall  be  set  apart,  in  case  my  said  brother  shall  die  before  his  said  wife, 
for  securing  to  his  wife  for  her  life  the  sum  of  £100  per  annum,  or 
in  case  of  his  surviving  his  wife,  so  much  of  the  £4,500  as  would  be 
equal  to  the  production  of  £100  per  annum,  from  the  dividends,  &c., 
thereof,  shall,  by  my  said  trustees,  immediately  upon  my  said  brother's 
decease,  be  set  apart,  and  that  my  said  trustees  shall  pay  the  said  sum 
of  £100  per  annum  to  my  granddaughter,  Adelaide  Dalton,  for  life; 
and  I  direct  that  after  her  death,  the  same  shall  be  equally  divided  be- 
tween the  children  of  my  nephew,  John  Austin." 

By  a  codicil  the  testatrix  revoked  the  £100  annuity  given  by  her  will 
to  her  granddaughter,  Adelaide  Dalton,  "she  being  otherwise  provided 
for." 

The  testatrix  died  in  1847;  William  Johnson  survived  his  wife  Har- 
riet, and  died  in  1852  and  Adelaide  Dalton  was  still  living. 

The  first  question  was,  whether  the  bequest  to  the  children  of  John 
Austin,  of  so  much  of  the  £4,500  as  would  produce  £100  a  year,  was 
accelerated  by  the  revocation  of  the  bequest  of  the  annuity  of  £100 
to  Adelaide  Dalton  for  life,  or  whether  its  enjoyment  by  such  chil- 
dren w;     postponed  till  the  decease  of  Adelaide  Dalton. 

On  the  question  of  acceleration,  the  case  of  Lainson  v.  Eainson  was 
cited. 

The  Master  of  the  Rolls  reserved  judgment. 


Ch.  9)  ACCELERATION  299 

Tut  Master  of  tiik  Rolls  [Sir  John  Romilly].  Though  I  think 
t})at  the  same  rules  which  relate  to  real  estate  do  not  apply  to  per- 
sonalty, and  that  therefore  this  case  is  distinguishable  from  Lainson 
V.  Lainson/^  still  I  think  that  the  decision  here,  on  the  construction  of 
this  will,  must  be  the  same,  and  that  it  must  be  held  that  the  interest 
of  the  children  of  John  is  accelerated.  Without  that,  I  do  not  see  how 
I  can  avoid  holding  that  it  fell  into  the  residue,  which  is  given  in  an- 
other way.  The  interest  of  the  children  takes  effect  at  once,  without 
waiting  for  the  death  of  Adelaide  Dalton.^^  [The  balance  of  the  case, 
relating  to  another  point,  is  omitted.] 

13  18  Beav.  1.  A  devise  of  land  to  A.  for  life  and  from  and  immediately 
after  his  death  to  B.  in  tail.  A  codicil  revoked  the  devise  to  A.  Held,  that 
B.'s  estate  was  accelerated. — Ed. 

14  See  also  Jnll  v.  Jacobs.  3  Ch.  D.  70.3  (1876) ;  Slocum  v.  Hagaman,  176  111. 
533,  52  N.  E.  332 :    Cook's  Estate,  10  Pa.  Co.  Ct.  Rep.  465. 

In  Craven  v.  Brady,  L.  R.  4  Eq.  200,  L.  R.  4  Ch.  App.  206,  where  there  was 
both  an  appointment  and  a  devise  to  A.  for  life,  subject  to  a  condition  sub- 
sequent of  forfeiture  on  alienation,  with  a  remainder  to  B.,  B.'s  remainder 
was  accelerated  upon  the  forfeiture  of  the  life  estate. 

But  where  an  appointment  was  made  to  a  wife  for  life,  "upon  condition 
that  she  should  thereout  maintain  and  educate  his  children,  in  such  manner 
as  his  executors  should  thinlv  proper,"  with  remainder  to  the  eldest  son,  and 
the  appointment  to  the  wife  was  void  because  in  excess  of  the  power,  but  the 
gift  in  default  of  appointment  was  to  the  children  equally,  the  remainder  was 
not  accelerated,  but  the  rents  and  profits  went  to  the  children  equally  during 
the  life  of  the  wife.     Crozier  v.  Crozier,  3  D.,  R.  &  W.  373. 

Suppose,  after  a  devise  of  real  estate  to  the  wife  for  life,  the  testator  di- 
rects that  at  the  wife's  death  the  executor  shall  sell  and  divide  the  proceeds 
between  A.  and  B.  If  the  wife  renounces,  may  the  executor  sell  at  once  and 
divide?     See  Dale,  Adm'r,  v.  Bartley,  58  Ind.  101. 

Now,  suppose  the  executors  are  directed  to  sell  at  the  wife's  death  and 
divide  the  proceeds  Into  two  shares,  one  to  go  to  A.  or  his  issue,  the  other 
to  r>.  or  his  issue,  with  a  gift  over,  if  either  dies  without  leaving  issue  before 
the  legacy  becomes  payable,  to  C.  Suppose  the  widow  renounces.  Are  A. 
and  B.  entitled  to  have  the  property  sold  and  divided  at  once?  See  Coover's 
Appeal,  74  Pa.  143.     If  so,  do  A.  and  B.  take  indefeasible  shares? 

Suppose  real  estate  be  devised  to  the  widow  for  life,  or  until  her  remar- 
riage, with  a  gift  "after  her  death  to  be  equally  divided  between  lawfully  be- 
gotten children  of  my  brothers,  John,  David,  Jacob  and  James."  or  such  of 
them  as  may  be  living  at  the  time  of  her  death.  After  the  widow's  remar- 
riage, were  the  remaindermen  who  then  survived  entitled?  See  Augustus  v. 
Sea  bolt,  3  INIetc.  155  (Ky.  1860). 

Suppose  a  devise  to  trustees  upon  trust  to  make  certain  payments  of  in- 
come to  the  wife  during  her  life ;  the  remainder  of  the  net  income  to  be 
divided  lietween  two  daughters  for  life,  with  a  gift  over  to  their  children,  and 
a  further  gift  over  upon  the  death  of  the  children  without  leaving  issue 
[which  happened],  "then,  immediately  after  the  decease  of  my  wife,  if  she 
survive  my  said  daughters,  but  if  not,  then  immediately  after  the  decease  of 
the  last  surviidng  one  of  my  daughters,  my  said  trustees  shall  divide  my  es- 
tate into  two  equal  shares,  *  *  *  and  shall  at  once  proceed  to  distribute 
one  of  such  shares  among  the  lawful  surviving  descendants  of  my  own  broth- 
ers and  sisters,  such  descendants  taking  per  stirpes  and  not  per  capita."  The 
widow  renounced.  Both  daughters  died  without  issue.  Then  brothers  and 
sisters  of  the  testator  died,  and  their  descendants  during  the  life  of  the 
widow  seek  a  distribution.  Are  they  entitled?  See  Blatchford  v.  Newberry, 
99  111.  11. 

Gray,  Rule  against  Perpetuities  (3d  Ed.)  §  251:  "In  former  editions  it  was 
said:  'Thus  if  an  estate  is  given  (1)  to  A.  for  life,  (2)  to  A.'s  unborn  child  for 
life,  (3)  to  the  child  of  such  unborn  child  for  life,  (4)  to  B.  in  fee,  B.'s  estate 


300  CONSTRUCTION  OF  LIMITATIONS  (Part  2 

is  good,  althougli  the  remainder  to  the  child  of  A.'s  unborn  child  is  too  re- 
mote. So  although  the  later  interest  is  not  vested  at  its  creation,  yet  if  it 
must  become  vested  within  the  limits  fixed  by  the  Rule  against  Perpetuities,  it 
will  be  good.'  But  this  is  incorrect.  A  vested  estate  is  an  estate  which  is 
subject  to  no  condition  precedent  except  the  termination  of  the  precedent  es- 
tates. [!Soe  §§  S,  101,  ante.]  In  the  case  put  the  estate  to  B.  is  subject  to  the 
condition  precedents  of  (1)  the  death  of  A.,  (2)  the  death  of  A.'s  unborn  child, 
(3)  the  death  of  the  child  of  A.'s  unborn  child.  A.  and  A.'s  unborn  child  have 
estates  for  life,  but  the  gift  to  the  child  of  A.'s  unborn  child  being  remote, 
said  child  has  no  estate;  and  therefore  as  B.'s  estate  is  subject  not  only  to 
the  termination  of  the  life  estates  of  A.  and  of  A.'s  unborn  child,  but  also 
to  the  contingency  of  the  death  of  an  unborn  person  who  has  no  estate,  the 
estate  given  to  B.  is  too  remote,  and  so  it  was  held  in  In  re  Mortimer  [1905, 
2  Ch.  (0.  A.)  502.  A  note  by  the  author,  23  Law  Quart.  Rev.  127,  is  wrong. 
See  1  Jarm.  Wills  (6th  Ed.)  352-354]." 


PART  III 
POWERS 


CHAPTER  I 

OPERATION.  CLASSIFICATION,  RELEASE  AND  DIS- 
CHARGE 


SIR  EDWARD  CLERK'S  CASE. 

(Court  of  Queen's  Bencli,  1599.     6  Coke,  17b.) 
See  ante,  p.  36,  for  a  report  of  the  case.^ 


RELEASE  AND  DISCHARGE  OE  POWERS,  by  John  Chipman 
Gray,  24  H.  L.  R.  511 :  The  first  distmction  in  powers  rests  on  the  na- 
ture of  the  instrument  by  which  the  power  is  exercisable.  It  may  be 
exercisable  by  either  deed  or  will,  or  by  will  alone.  A  power  may  be 
made  exercisable  by  deed  and  not  by  will,  but  the  law  as  to  releases 
is  the  same  in  the  case  of  powers  of  this  description  as  it  is  in  that  of 
powers  exercisable  by  either  deed  or  will.  For  the  essential  difference 
is  whether  the  power  can  be  exercised  at  once,  or  only  on  the  death  of 
the  donee. 

1  In  Roach  v.  Wadham,  6  East,  289  (1805),  the  donor  of  the  power  con- 
veyed in  fee  to  the  donee  reserving  rent  and  the  donee  agreeing  to  pay  rent. 
The  donee  then  appointed  the  fee  and  tlie  appointee  covenanted  to  pay  the 
rent  to  tlie  donor.     Held,  the  donor  could  not  sue  the  appointee  for  the  rent. 

Sugden  on  Towers  (Sth  Ed.)  314:  "Moreton  v.  Lees,  C.  P.  Lancaster,  March 
Ass.  1819.  Case  reserved  and  argued  before  Lord  Chief  Baron  Richards  and 
Mr.  Baron  ^Yood,  at  Serjeants'  Inn.  The  conveyance  was  by  feoffment  to 
the  purchaser  and  his  heirs,  habendum  to  him,  his  heirs  and  assigns,  to  such 
uses  as  he  should  appoint  by  deed  or  will,  and  in  default  of  and  until  ap- 
poiutniont,  to  the  use  of  the  purchaser,  his  heirs  and  assigns.  He  exercised 
the  power  by  an  appointment  in  fee,  and  his  wife  brought  an  action  to  re- 
cover her  dower.  The  objection  was  taken  that  the  husband  was  in  at  the 
common  law,  and  the  power  was  void ;  but  the  contrary  was  decided,  and 
the  wife  was  held  to  be  barred  of  dower.  This  decision,  therefore,  sets  the 
point  at  rest.  It  has  recently  been  followed  by  a  case  iu  Ireland.  Gorman 
v.  Byrne,  8  Ir.  C.  L.  391." 

In  Commonwealth  v.  Dufl3eld,  12  Pa.  277  (1849),  the  donor,  residing  in 
Maryland,  created  by  will  a  general  testamentary  power  to  appoint  personal- 
ty iu  Maryland.  The  donee  resided  in  Pennsylvania  and  appointed  by  wall 
probated  in  that  state.  Held,  the  appointee  was  not  liable  for  any  col- 
lateral inheritance  tax  under  the  laws  of  Pennsylvania. 

4  Kales  Prop.  (301) 


302  POWERS  (Part  3 

Again,  powers  are  either  gptipfnl  r>r  ^pprigl  Under  a  general  power 
an  appointment  can  be  made  to  any  one,  including  the  appointing  donee. 
Under  a  special  power  an  appointment  can  be  made  only  to  certain  per- 
sons or  objects,  or  to  certain  classes  of  persons  or  objects  other  than 
the  donee.     Special  powers  are  sometimes  called  limited  powers. 

Finally,  tlie  relation  between  the  donee  and  the  property  over  which 
he  has  the  power  of  appointment  may  be  one  of  four  kinds :  First. 
The  donee  may  have  an  interest  in  the  property  from  which  the  exer- 
cise  of  the  power  will  derogate,  as  wherTthe  donee  of  the  power  owns 
tlieproperty  in  fee.  This  is  called  a  power  appendant^  Second.  The 
donee  may  have  an  interest  in  the  property,  but  the  exercise__ofthe 
power  will  not  derogate  from  such  interest,  as  when  A.  has  a  life  es^ 
tate^yith  power  to  appoint  by  will.  This  is  called  a  power  in  gross  or 
collateral.  Third.  The  donee  has  no  interest  in  the  property,  but  has 
himself  created  the  pojvver,  as  when  a  man  conveying  land  in  fee  re- 
sefves  to  himself  a  power  of  appointment.  This  is  also  called  a  power 
in  gross  or  collateral,  to  distinguish  it  from  the  power  of  the  second 
kind,  it  will  be  called  here  a  reserved  power  in  gross.  Fourth.  The 
donee  has  no  interest  in  the  property  and  did  not  create  the  power. 
The  power  in  tliis  case  is  said  to  be  simply  collateral. 

This  somewhat  clumsy  nomenclature  is  derived  from  an  opinion  of 
Hale,  C.  B.,  in  Edwards  v.  Sleater  [Harde.  410,  415,  416]. 


DOE  ex  dem.  WIGAN  v.  JONES. 

(Court  of  King's  Bench,  1830.     10  Barn.  &  C.  459.) 

Lord  Te:nterde;n,  C.  J.^  This  was  a  special  case,  argued  during 
the  last  term.  It  appeared  by  the  case  that  in  Michaelmas  term  1822  a 
jiujpnTierrt_was_entered  UP  against  T.  Baker  at  the  suit  of  the  defendant, 
who,  on  the  13tli  of  December.  1827.  sued  out  an  elegit,  under  which 
the  lands  in  question  were  delivered  to  him  by  the  sheriff.  In  the  mean 
time,  between  the  entering  up  of  the  judgment  and  the  execution  of  the 
elegit,  viz.  m  JNIovember,  1826,  the  then  defendant.  Baker,  had  arquiri^d 
these  lands  by  a  conveyance  to  such  uses  as  he  might  appoint,  and  in 
the  "mean  time  to  the  use  of  himself  tor  lite,  and  so  forth.  In  March, 
1827,  Baker  mortgaged  the  estate  for  £4000  to  the  lessor_of  the  plain- 
tilT^  and  appointed  the  use  to  him  for  500  years ;  and  the  question  for 
tITe  court  was,  Whether  this  conveyance,  under  the  power  of  appoint- 
ment, defeated  the  judgment-creditor?  It  has  been  established  ever 
since  the  time  of  Lord  Coke,  that  where  a  power  is  executed  thej^^iaon 
taking  under  it  takes  under  him  who  created  the  power,  and  not  under 
hiin  who  executes  it.  The  only  exceptions  are,  where  the  person  exe- 
cuting  the  power  has  granted  a  lease  or  any  other  interest  whichTEe^may 

2  See  Maundrell,  10  Ves.  246,  254.  «  The  opinion  only  is  given. 


Ch.  1)  OFERATION,  CLASSIFICATION,  RELEASE  AND  DISCHARGE  303 

do  by  virtue  of  his  estate,  for  then  hejsjnot  allowed  to  defeat  his  own 
act  .but  suttenng  a  fud^ment  is  not  within  the  exception  as  an  act 
done  by  the  party,  for  it  is  considered  as  a  proceeding  in  inviturn^_and 
theretore  falls  within  the  rule.  We  are,  therefore,  of  opinion  that  the 
nonsuit  must  be  set  aside,  and  a  verdict  entered  for  the  plaintiff. 
Postea  to  the  plaintiff.* 


JONES  V.  WIN  WOOD. 
(Court  of  Exchequer,  1S38.     3  Mees.  &  W,  653.) 

AldERSON,  B.^  In  this  case  we  propose  to  give  the  reasons  which 
have  induced  us  to  send  our  certificate  to  the  Lord  Chancellor  in  favor 
of  the  plaintiffs. 

By  the  original  conveyance,  dated  the  27th  and  28th  of  December, 
1819,  certain  lands  were  settled  to  such  uses  as  William  T.  Davies,  and 
Frances  his  wife,  should  at  any  time  or  times,  and  from  time  to  time, 
during  their  joint  lives,  by  deed  or  other  instrument  in  writing  duly  ex- 
ecuted, direct  and  appoint,  and  in_detault  ot  and  until  such  appointment, 
to  the  use  ot  William  T.  Davies  for  lite,  with  remainder  to  trustees  to 
preserve  contingent  remainders,  then  to  the  use  of  his  wife  for  life,  then 
in  like  manner  to  the  use  of  his  sons  in  succession  in  tail  gpnpml^  aiyl 
then  to  the  use  of  the  daughters  in  tail  general,  with  cross  remainders, 
and  with  remainder  in  fee  to  William  T.  Dayies_himself. 

In  1824  WiUiam  _T.  Davies  took  the  benefit  of  the  Insolvent  Act,  and 
convey e3~ to  the  prm-isional  assignee,  on  the  5th  ot*  August,  1824,  ah, 
his  interest  m  the  premises,  which  was  subsequently  transferred  by  the 
provisional  assignee~to'  Isaac  Jones,  the  assignee  of  the  estate  in  tlie 
usual  way. 

Under  these  circumstances  William  T.  Davies  and  his  wife  in  execu- 
tion of  their  joint  power  of  appointment  conveyed  on  the  16th  and  17th 
Ql.§eptember,  1828,  by  lease  and  release,  the  premis^iTo  Fatrick  Br6\vh 
and  Jenkyn  Beynon  in  tee,  upon  trust  for  the  creditors  of  W.  T.  Davies. 
And  the  point  to  be  considered  is,  whether  by  this  appointment  any 
estate  passed,  and  what  estate,  to  the  trustees. 

The  first  question  is,  whether  tlie  power  was  revoked  by  the  convey^ 
anc^to  the  provi  =  '''^"n1  n'l^'nf'-'^^  :  anrl  we  are  ot  opinion  that  it  was  not. 
Indeed,  on  this  part  of  the  case  there  seems  to  be  little  difficulty. 

No  authority  was  cited  for  the  proposition  contended  for  by  the 
defendant's  counsel,  that  where  by  previous  conveyance  a  party  has 
prevented  himself  from  executing  a  power  as  fully  as  he  could  have 
originally  executed  it,  the  power  is  at  an  end ;  nor  can  any  such  propo- 
sition be  maintained.     Even  upon  the  authority  of  the  decision  of 

*  A  power  is  not  extinguished  by  a  judgment  against  the  donee.    Leggett 
V.  Doremus,  25  N.  J.  Eq.  122. 
6  The  opinion  only  is  given. 


304  POWERS  (Part  3 

Badham  v.  Mee  [7  Bing.  695;  1  Myl.  &  K.  32],  as  explained  by  Sir 
John  Leach,  this  question  may  be  answered  in  the  negative.  For  he 
considered  the  power  as  not  well  executed  in  that  case,  because  the 
particular  limitations  made  by  the  appointment  under  it  could  not  have 
been  valid,  if  introduced  into  the  original  deed  creating  the  power. 
But  if  the  previous  conveyance  had  altogether  put  an  end  to  the  power, 
such  reasons  would  have  been  wholly  unnecessary. 

Now  it  is  obvious,  as  was  indeed  pointed  out  by  the  court  in  the 
course  of  the  argument,  that  limitations  might  have  been  made  subse- 
quently to  the  conveyance  in  1824,  which  would  apply  to  the  life  estate 
of  the  wife,  and  the  estates  tail  of  the  children,  and  which  might  legally 
have  been  introduced  into  the  original  deed,  and-  consequently,  upon 
the  principles  stated  in  Badham  v.  Mee,  such  an  execution  of  the 
power  would  have  been  valid ;  and  if  any  valid  execution  of  the  power 
could  have  been  made,  the  first  of  the  Lord  Chancellor's  questions  must 
be  answered  in  the  negative. 

But  in  truth,  the  whole  case  turns  upon  the  answer  to  be  given  to  the 
second  question.  For  if  the  execution  of  this  power  by  the  deed  of 
September,"  1&28,  be  invalid,  then  no  estate  passed  by  it,  and  the  origi- 
nal limitations  contained  in  the  deed  of  1819  remain  still  in  force. 

We  think,  after  full  consideration,  that  this  power  was  well  executed, 
so  as  to  convey  the  estate  for  life  of  the  wife,  and  the  estates  tail  of  die 
children,  to  Llie  lruijte(i:j  under  the  deed  of  1828.       ~~~ 

"We  cannot  adopt  the  principle  laid  down  by  Sir  John  Leach,  in 
affirming  the  certificate  sent  by  the  Court  of  Common  Pleas  in  Badham 
V.  Mee.  It  is  not  clear  that  such  was  the  ground  on  which  that  court 
made  their  certificate,  the  reasons  for  which  were  not  given  by  them. 

We  do  not  think  that  it  is  right  to  translate  into  words  the  effect  of 
the  appointment  under  the  power,  taken  in  conjunction  with  the  other 
circumstances,  and  then  to  consider  whether  such  limitations  could, 
according  to  the  peculiar  rules  aft'ecting  the  transmission  of  landed 
property,  have  been  legally  inserted  in  the  original  deed.  The  utmost 
extent  tO'  which  the  principle  could  be  carried  (and  looking  at  the  prin- 
ciples which  govern  the  execution  of  these  powers,  which  were  origi- 
nally mere  modifications  of  equitable  uses,  taking  effect  as  directions  to 
trustees,  which  bound  their  conscience,  and  which  a  court  of  equity 
would  compel  them  to  perform,  it  may  be  questionable  whether  even 
this  ought  to  be  done),  would  be  to  insert  the  limitations  actually  con- 
tained in  the  appointment  itself  in  the  original  deed,  and  then  to  ex- 
amine whether  such  limitations  would  be  repugnant  to  any  known  rule 
of  law.  Now,  if  we  do  that  in  this  case,  no  difficulty  would  be  pro- 
duced. Here,  if  the  limitation  of  the  estate  made  by  the  appointment 
under  this  power  had  been  inserted  in  the  original  deed,  there  would 
have  been  no  incongruity  upon  the  face  of  that  instrument.  A  fee 
would  have  been  given  to  Brown  and  Beynon,  the  trustees,  and  no  more» 
But  then,  in  considering  what  operation  such  a  deed,  good  in  point  of 
form,  will  have,  the  court  looks  at  the  other  circumstances ;  and  finding 


Ch.  1)  OPERATION,  CLASSIFICATION,  RELEASE  AND  DISCHARGE  305 

that  the  insolvent  had  previously,  by  an  innocent  conveyance  (for  such 
the  assignment  under  the  Insolvent  Act  must,  we  think,  be  considered  to 
beT-  conveyed  away  his  lite  estate  and  his  remainder  in  fee^  it  adjudges 
that  he  cannot,  by  executing  the  power,  dero.c^ate  from  his  own  previous 
conveyance,  and  concludes  therefore  that  the  deed  does  not  operate  on 
the  estates  previously  assigned. 

I'he  result  thereTore  is,  that  by  executing  the  power,  the  insolvent 
conveys  to  the  trustees  all  that  had  not  been  previously  assigned  under 
the  Insolvent  Act  to  his  assignees.  In  conformity  with  this  opinion  we 
shall  send  our  certificate  to  the  Lord  Chancellor." 


In  re  RADCLIFFE. 

(Court  of  Appeal,  1S91.     L.  R.  [1892]  1  Ch.  227.)  ^ 

LiNDLEY,  L.  J.  This  is  an  appeal  from  a  decision  of  Mr.  Justice 
North.  In  order  to  understand  the  application,  it  will  be  necessary 
that  I  should  state  the  circumstances  under  which  it  is  made.  It  ap- 
pears that  in  1852  a  marriage  settlement  was  made  which  gave  the 
intended  husband  a  life  interest  in  certain  property  both  real  and  per- 
sonal. It  also  gave  a  life  interest  to  his  wife  in  the  same  property. 
She  is  dead.  There  was  a  power  to  appoint  amongst  the  children  of  the 
marriage,  and  subject  to  the  life  interests  and  to  the  power  of  appoint- 
ment the  property  was  vested  in  trustees  in  trust  for  the  children  of 
the  marriage,  vesting  in  them  on  attaining  twenty-one.  One  of  them 
died  intestate  without  attaining  a  vested  interest ;  two  others  lived  to 
obtain  vested  interests.  One  died  intestate  having  a  vested  interest, 
and  his  father,  the  Appellant,  is  his  legal  personal  representative.  The 
wife  being  dead,  the  father  is  equitable  tenant  for  life  of  the  whole 
property,  and  he  is  entitled  as  legal  personal  representative  of  his  son 
to  one  half  of  the  personal  estate  subject  to  the  trusts  of  the  settlement. 
Under  those  circumstances,  the  father  executed  a  deed  by  which  he  has 
extinguished  his  power  of  appointment;  and  having  extinguished  his 
power  of  appointment  the  result  is  this :  that  as  regards  the  personal 
estate,  with  which  alone  we  have  to  deal  now,  he  is  equitable  tenant  for 
life  in  his  own  right,  and  he  is  entitled  as  administrator  of  his  son  to 
one  half  of  the  reversion  in  the  same  property.  That  being  the  case, 
he  has  taken  out  a  summons  asking  the  Court  to  authorize  or  to  di- 
rect the  surviving  trustee  to  pay  him  over  half  the  personal  estate  to 

6  See  Reid  v.  Gordon,  35  Md.  174. 

Where  the  holder  of  a  fee  with  a  power  appendant  conveys  the  fee,  the 
power  is  extintruished.  McFall  v.  Kirkpatrick,  236  111.  281,  290,  86  N.  E.  139 ; 
Brown  and  Wife  v.  Renshaw,  57  Md.  67,  78. 

"  Only  the  opinion  of  Lindley,  L.  J.,  is  given.  The  concurring  opinions  ol 
Bowen  and  Fry,  L.  J  J.,  are  omitted. 

4  Kales  Prop. — 20 


306  POWERS  (Part  3 

which  he  is  entitled  in  the  way  and  to  the  extent  I  have  mentioned. 
The  trustee  very  naturally  declines  to  do  it  without  the  direction  of  the 
Court,  and  Mr.  Justice  North  has  also  declined  to  interfere,  and  this  is 
an  appeal  from  his  decision. 

Now,  before  I  refer  to  the  authorities,  I  will  say  one  or  two  words 
about  the  principle  applicable  to  the  case.  The  exact  position  of  affairs 
being  that  which  I  have  stated,  it  is  obvious  that  at  the  present  moment, 
the  life  estate  being  vested  in  the  father  in  one  right  and  the  reversion 
in  another  right,  the  two  have  not  merged.  In  order  that  there  may 
be  a  merger,  the  two  estates  which  are  supposed  to  coalesce  must  be 
vested  in  the  same  person  at  the  same  time  and  in  the  same  right. 
Therefore,  there  is  no  merger  as  matters  at  present  stand.  The  power 
of  appointment  is  effectually  got  rid  of.  There  was  a  time  when  it 
A^^ac  <jr||]]-»f-fi||  yrlipther  such  a  power  could  be  released;  but  all  doubton 
that  point  was  removed  more  than  fifty  years  ag.o,--and  no  doubt  can  be 
thrown  or  ought  to  be  tHrovvn  on  the  doctrine  that  was  then  establish- 
ed, even  independently  of  the  52d  section  of  the  Conveyancing  Act, 
1881.  The  power,  therefore,  having  been  got  rid  of,  the  only  difficulty 
in  principle  in  assenting  to  the  application  of  the  father  is  that  there  is 
as  yet  no  merger.  The  difficulty  could  be  got  rid  of  at  once  by  a  sur- 
render by  the  father  of  his  life  interest  so  as  to  extinguish  it,  the  ef- 
fect of  which  would  be  that  the  two  interests  would  coalesce,  and  if 
there  are  any  creditors  the  two  estates  would  coalesce  for  the  benefit 
of  the  creditors.  The  father,  as  the  legal  personal  representative  of 
his  son,  would  then  have  an  estate  in  possession  which  could  be  dis- 
tributable amongst  the  son's  creditors  if  there  were  any,  and  subject 
to  their  payment  he  would  take  the  property  as  sole  next  of  kin  under 
the  statute.  Now,  although  there  has  been  no  surrender,  I  apprehend 
there  will  be  no  difficulty  in  the  Appellant  undertaking  to  surrender 
his  estate  now  by  counsel  at  the  Bar.  If  that  were  done,  I  cannot  see 
any  principle  whatever  on  which  we  should  decline  to  act  upon  the  state 
of  things  which  would  then  exist.  It  is  said  that  mergers  are  odious 
to  the  Court.  I  do  not  understand  that.  The  saying  only  means  that 
mergers  are  odious  if  misapplied  so  as  to  do  injustice;  but  there  is. 
nothing  odious  in  a  merger  if  there  is  no  injustice  done.  Therefore,  I 
confess,  upon  pi'iiictple-f~cannot  see  wlTyTheT!ourt  stlould  decline  to 
accede  to  the  application  of  the  tenant  for  life  provided  he  removes 
the  technical  difficulties  which  I  have  suggested  by  surrendering  his 
life  estate. 

Then,  it  is  said  that  there  are  cases  against  this  view,  and  that  there 
is  an  authority  of  Cunynghame  v.  Thurlow  [1  Russ.  &  My.  436,  n.], 
which  is  inconsistent  with  it.  Now,  I  am  not  sure  that  Cunynghame 
V.  Thurlow  was  inconsistent  with  it,  because  in  Cunynghame  v.  Thur- 
low itself  there  was  no  equitable  merger  by  reason  of  there  having  been 
in  that  case  what  there  is  here — an  estate  for  life  in  one  right,  and 
remainder  in  another  right,  and  there  was  no  suggestion  in  Cunynghame 
v.  Thurlow  that  the  difficulty  could  be  got  rid  of  by  a  surrender.    But 


Ch.  1)  OPERATION,  CLASSIFICATION,  RELEASE  AND  DISCHARGE  307 

be  that  as  it  may,  Cunynghame  v.  Thurlow  has  been  recognized  and 
acted  upon  for  a  great  number  of  years  with  one  very  striking  excep- 
tion. The  exception  to  which  I  refer  is  the  case  before  the  late  Master 
of  the  Rolls  (Sir  John  Romilly)  of  Smith  v.  Houblon  [26  Beav.  482]. 
Some  little  ambiguity  is  thrown  upon  Smith  v.  Houblon  by  reason  of 
Mr.  Beavan  not  having  set  out  the  order  which  was  actually  made ; 
but  Mr.  Lawrence  has  been  kind  enough  to  supply  us  with  a  copy  of 
that  order,  and  it  shews  that  Lord  Romilly 's  order  went  much  further 
than  Mr.  Beavan  understood  it  to  go,  and  did  declare  that  the  plain- 
tiff there  was  entitled  to  receive  from  the  trustees  that  which  he  sought 
to  receive.  Those  two  cases  are,  to  my  mind,  directly  in  conflict;  and 
we  are  at  liberty  to  act  upon  principle,  and  to  say  that  notwithstanding 
Cunynghame  v.  Thurlow  the  Plaintiff  is  entitled  to'  an  order  such  as  he 
asks,  I  should  hesitate  long  before  I  did  that  if  I  thought  there  was  the 
slightest  danger  of  our  present  decision  shaking  any  title.  But,  having 
considered  the  matter  as  best  I  can,  and  having  consulted  with  my  learn- 
ed Brethren,  I  am  unable  to  see  how  any  title  can  be  affected  or  preju- 
diced in  any  way  whatever. 

It  appears  to  me,  therefore,  that  the  right  order  to  make  is  this : 
to  discharge  the  order  made  by  Mr.  Justice  North,  who,  I  am  bound  to 
say,  had  not  his  attention  called  to  the  mode  of  getting  rid  of  the  dif- 
ficulty by  surrendering  the  life  estate;  and,  of  course,  until  that  sur- 
render is  made  there  is  a  difficulty  and  the  Plaintiff  will  not  be  entitled 
to  the  money.  But  if  the  Plaintiff  has  no  objection — I  do  not  suppose 
he  has — the  order  may  be  drawn  up  in  this  form :  The  Plaintiff  by  his 
counsel  at  the  Bar  undertaldng  to  surrender  his  life  interest  in  one 
moiety  ot  the  personal  estateTTubject  to  the  trviits  of  the  settlement 
of  July7T852,'to  the  end  that  the  said  life  interest  may  merge  jn  the  in- 
tere^sTuTTemainder  vested  in  the  Plaintiff  as  the  legal  personal  repre- 
sentative ot  his  son  geciarethat  the  Plaititiff  is  entitled  as^^egal  per- 
soiial  £epi-esentative  of  his  son  to  receive  from  the  Defendant,  the 
surviving  trustee,  tlie  said  moiety  of  the  said  personal  estate  subiect~lo 
the  payment  tnereout  ot  tiie  costs'^  the  order  of  the_  14tlL-Qf  April, 
1891,  ordered  to  be  retained,  and  the  costs  of  all  parties  to  this  appeal. 

Tlie  net  result,  therefore,  of  our  decision  I  take  to  be  this :  that  jn  a 
case  of  this  kind  the  trustees  cannot  safelv  pav  the  money  to  the  tenant 
for  life  who  simply  extinguishes  his  power :  He  must  do  something 
more — he  must  surrender  his^  life  estate  as  well,  i  do  not  think  that 
was  done  in  Cunynghame  y.  Thurlow  [1  Russ.  &  My.  436,  n.].  I 
can  find  no  trace  of  it.  But  if  the  power  is  extinguished,  and  the  life 
estate  is  surrendered,  then  the  tenant  for  life's  two  interests  do  co- 
alesce, and  are  vested  in  the  same  person  at  the  same  time  in  the  same 
right;  and  trustees  may  safely  act  upon  tliis  view  in  future;  and  this 
Court  will  act  upon  it  now.^ 

8  See  Atkinson  v.  Dowling,  ?,?,  S.  C.  414,  12  S.  E.  93 ;  Thorington  v.  Thor- 
ingtou,  82  Ala.  489,  1  Soutli.  716 ;  Grosvenor  v.  Bo\yen,  15  R.  I.  549,  551,  10 
Atl.  589. 


308  POWERS  (Part  3 

WEST  V.  BERNEY. 

(Court  of  Chancery,  1819.    1  Russ.  &  M.  431.) 

In  this  case  the  master  had  reported  that  a  good  title  was  shown; 
and  exceptions  were  taken  to  the  report.  The  question  arose  on  the 
following  instruments : 

Sir  Tohn  Eerney,  being  seised  in  fee  under  a  settlement  made  in 
1 789,  conveyed  the  estate  to  the_use  oT himself  for  life ;  remainder  to 
suchone  or  more"  of  his  sons  as  he~  should  appoint ;  remainder,  in  de- 
fault of  appointment,  to  his  first  and  other  sons  in  tail^  remainderTo 
hiinself  in  fee. 

In  1811,  on  the  occasion  of  the  marriage  of  his  eldest  son,  Sir  John 
Beniey  "was  a  party  to  a  deed  of  settlement,  to  which  the  intended  wife 
was  also  a  party,  and  to  a  fine  and  recovery  levied  and  suffered  in  pur- 
suance thereof,  whereby  the  estate  was  limited  to  the  use  of  Sir  John 
Berney  for  lifejremainder  to  the  use  of  Hanson  Berney,  his  eldest 
son,  lor  lite;  remainder  to  thejirst  and  other  sons  of  Hanson  Berney 
in  TaiI7"with~  divers  remaindersover.  And  in  this  deed  a  power  was 
given  to  tlie  trustees,  authorizing^  them,  at  the  request  of  Sir  John 
Berney  during  his  life,  and,  after  his  death,  at  the  request  of  Hanson 
Berney,  to  sell  the  estate ;  and,  after  paying  the  encumbrances  to  which 
it  was  at  this  time  subject,  to  invest  the  produce  in  the  purchase  of 
other  estates  to  be  settled  to  the  same  uses. 

Sir  John  Berney  had  not  previously  executed  any  appointment  in 
favor  of  his  eldest  son ;  and  a  doubt  occurring  whether  he  might^not 
still  execute  his  appointment  in  favor  of  any  other  son,  and  so  defeat 
the  settlement,  he,  in  1815,  executed  a  deed  of  appointment  in  iavor 
ofJjie_eldest  son  in  fee,  reritincr^  thnt  it  was  for  the  purpose  of- confirm- 
ing the  marriage  settlement  of  1811. 

Against  the  title,  it  was  urged  by  Mr.  Preston,  that  the  power  of 


appointment  in  the  deed  of  1789  was  merely  collateral,  and,  being  for 
the  benefit  of  particular  objects,  was  ^-n  inferpc;!  in  thf-m,  and  in  the 
iiature_of  a  trust  in  Sir  John  Berney^_aiid^ierefcu-e,  rnulrl  neitlier  be 
released  nor  extinguished  by  him ;  that  the  power  of  appointment  re- 
manied  in  him,  therefore,  notwithstanding  the  settlement  of  1811 ;  and 
that  it  was  not  well  executed  by  the  deed  of  1815,  because  the  eldest 
son  was  not  capable  of  receiving  an  interest  in  the  estate  inconsistent 
with  the  settlement  of  1811.  He  cited  Co.  Lit.  237  a,  265  b,  Albany's 
Case,  1  Rep.  HI,  and  Digges's  Case,  1  Rep.  175. 

Mr.  Sugden,  who  was  also  against  the  title,  differed  altogether  in  his 
argumenTTrom  Mr.  i-'reston"  He  admrtted  that  the  power  was  extiu- 
guished  by  the  settlement  of  1811 ;  but  insisted  upon  the  form  of 
tlTCTTicadings,  that  a  good  title  could  be  made  only  for  a  certain  term 
of  500  years,  under  which  the  plaintiffs  claimed.  He  relied  upon  Al- 
bany's Case  and  Digges's  Case ;  and  cited  also  Leigh  v.  Winter,  Sir  W. 
Jones,  411;    Bird  v.  Christopher,   Stiles,  389;    Edwards  v.   Sleater, 


Ch.  1)  OrERATION,  CLASSIFICATION,  RELEASE  AND  DISCHARGE  309 

Hardres,  410;  King  v.  Melling,  1  Vent.  225;  Tomlinson  v.  Dighton,  1 
P.  Wms.  149 ;  Saville  v.  Blacket,  1  P.  Wms.  717 ;  Morse  v.  Faulkner, 
1  Anstr.  11,  3  Swanst.  429,  n. 

The  Vice-Chancellor  [Sir  John  Lkacii].  In  Albany's  Case  it 
was  held,  that  the  reserved  powerof_thegrantor  may  be  extinguished 
by  his  release.    He"tookTirthe  settlenienT  an  e"state"for  life. 

In  Digge£sjCase  it  was  held,  that  the  reseryedjjower  of  the  grantor, 
who  took  by  the  deed  also  an  estate  for  liTeTT^eing  to  be  executed  by 
deed  indented  and  enrolled,  was  extinguished  by  his  fine  levied  after  a 
revocation,  but  before  enrolment. 

In  Leigh  v.  Winter  it  was  held  that  the  grantor  could  release  his 
reserved  power  of  revocation.  He  took  by  the  settlement  an  estate  for 
life.'  

In  Bird  v.  Christopher  it  was  held  that,  if  A.  enfeoff  with  power  of 
revocation,  and  afterwards  levy  a  fine,  the  power  is  extinguished. 

Edwards  v.  Sleater  was  cited  for  the  able  reasoning  of  Lord  Hale 
upon  the  distinctions  of  powers ;  whose  opinion  seems  to  be,  that 
where  the  party  to  execute  the  power  has  or  had  an  estate  in  the  land, 
it  is  not  simply  collateral ;  and  whether  it  be  appendant  to  his  estate,  as 
a  leasing  power,  or  unconnected  with  his  particular  estate,  and  there- 
fore in  gross,  it  may  be  destroyed  by  release,  fine,  or  feofifment. 

In  King  v.  Melling,  it  was  held  that  a  power  in  the  devisee  for  life 
to  jointure  his  wife  was  extinguished  by  a  recovery. 

In  Tomlinson  v.  Dighton  it  seems  to  be  admitted,  that  where  there 
is  a  devisee  for  life,  with  power  to  appoint  to  her  children,  the  power 
would  be  extinguished  by  fine. 

In  Saville  v.  Blacket  it  was  held  that  a  tenant  for  ninety-nine  years, 
if  he  should  so  long  live,  extinguished  his  power  to  charge  the  estate 
\vith  a  sum  of  money  by  joining  in  a  recovery  and  re-settlement  of  the 
estate,  because  he  would  othervvise  defeat  his  own  grant. 

In  Morse  v.  Faulkner,  A.  sold  a  copyhold  estate  to  which  he  had  no 
title.  It  afterwards  descended  upon  him,  and  he  died.  On  a  bill  by 
the  purchaser  against  his  heir,  the  court  was  of  opinion  that  the  pur- 
chaser would  have  had  a  personal  equity,  but  doubted  whether  it  could 
reach  his  heir. 

Upon  the  authorities  and  principle  my  opinion  is,  that  a  power  simply 
collateral,  tUat  is,  a  power  to  a  stranger,  who  has  no  interest  in  the 
land,  cannot  be  extinguished  or  suspended"  by  any  acT^ot  liis  own  or 
others  with  respect  to  the  land .  It  is  clear,  too,  that  it  cannot  be  re- 
leased,  where  it  is  to  be  exercised  for  the  benefit  of  another. 

TTmust  be  equally  clear  that  it  may  be  released,  where  it  is  for  his 
own  benefit,  as  a  power  to  charge  a  sum  of  money  for  himself^    In" 
sifch  case,  his  joining  in  a  conveyance  of  the  land  clear  of  the  charge, 
would  be  a  release. 

I  think  that  every  power  reserved  by  the  grantor,  whether  he  has 
retained  an  interest  in  the  estate  as  tenant  tor  lite  or  otherwise,  is  an 


310  POWERS  (Part  3 

interest  in  him,  which  may  be  released  or  extinguished.  Bird  v.  Chris- 
topher.  It  ditters^aTtogether  from  a  naked  authority  given  to  a  mere 
stranger.    It  is  so  much  reserved  by  him  out  of  the  estate. 

I  think  that  every~power  reserved  to  a  grantee  forjifej  though  not 
appendant  to  his_own  estate,  as  a  leasing  power,  but  to^take  effect  after 
the  determination  of  his  own  estate,  and  therefore,  in  gross,  may  be 
extm^msKed.  In  respect  of  his  freeholdmterest  he  can  act  upon  the 
estate,  and  his  dealing  with  the  estate  so  as  to  create  interests  incon- 
sistent with  the  exercise  of  his  power,  must  extinguish  his  power.  The 
general  principle  is,  that  it  is  not  permitted  to  a  man  to  defeat  his  own 
grant.  Such  a  power  in  gross  in  tenant  for  life  would  not  be  defeated 
by  a  conveyance  of  his  life  estate,  as  a  power  appendant  or  leasing 
power  would  be  defeated ;  because  the  conveyance  of  his  life  estate  is 
not  inconsistent  with  the  exercise  of  his  power. 

Quaere.  Could  such  a  power  in  gross  in  a  tenant  for  life  be  re- 
leased? If  he  were  grantor,  it  is  decided  by  Albany's  Case  and 
Leigh  V.  Winter  that  it  could  be  released ;  and  I  think  it  may  equally 
be  released,  if  he  is  grantee;  because  his  release  must  be  to  him  who 
takes  subject  to  the  power;  and  the  exercise  of  the  power  would  be 
inconsistent  with  the  release,  which  is  a  species  of  conveyance  affect- 
ing the  land.    Sed  qusere. 

Mr.  Preston  admits  all  this  reasoning  as  applied  to  general  powers, 
but  disputes  it  as  to  powers  to  appoint  to  particular  objects^  as  chil- 
dren.  Here,  he  says,  the  power  is  not  an  interest  in  the  appomtor  but 
irTtiie  appointee,  and  is,  therefore,  in  the  nature  of  a  trust,  which  the 
trustee  cannot  release  or  extinguish. 

It  is^not  a  trust,  because  the  alleged  cestui  que  trust  cannot  call  for 
the  execution  of  it^  It  may  beexercised  ^rjiot ;  andjTdealing  with 
the  estate,  mconsistent"with  the  exercise  of  it,  determinesjthe  option  to 
exercise  It     In  King  v.  Melling,  the  power  was  a  particular  power. 

But  this  reasoning  would  apply  to  a  power  simply  collateral.  The 
difference^  however  is,  that  no  act  in  the  latter  case  can  aff'ect  the 
land ;  whereas  m  tHe^other,  the  Tiiterest^of  the  person^  givel^him  th'e 
p ower  to  create~an  inconsistent  estate  in  the  fand,  th o ugh^de fea slble . " 

Mr.  ir'reston  urgeji^the^jielief^giyen^ against  frauds  upon  the  power; 
as  mThe_case'of  an  appKrm^^^^t  by_a_Jather  substantially  to~himself. 
This,  however,  does  not  prove  the  existence  of  a  trust.  It  proves 
onl^Tthat  ajjower  given  for  a  particular  purpose  shall  not  by  circuity 
be  exercrsed  for  a  different  purpose.  "" 

It"does  not,  upon  the  whole,  appear  to  me  to  be  a  proper  case  to 
decide  the  general  principle,  that  every  power  reserved  by  a  grantor 
may  be  released  or  extinguished._ainimighlie~reserved  no  other  inTefest 
injhe  estate, — or  the  other  principle,  that  every  grantee  for  life  with 
a  power  m  gross  may  in  Jike^manner  rel^ea^e_or_ex^^  although 

I  was  aiid  am  of  opinion,  that  such  two  general  principles  are  estab- 
lished.    But  I  decide  the  case  upon  the  ground  that  the  settlement  of 


Ch.  1)  OPERATION,  CLASSIFICATION,  RELEASE  AND  DISCHARGE  311 

1811  was  substantially  and  equitably  an  appointment  by  Sir  J.  Berney 
in  favor  of  his  eldest  son,  and  that  the  limitations  in  the  settlement  were 
to  be  considered  as  limitations  made  by  him.® 


SMITH  V.  PLUMMER. 
(Court  of  Chancery,  1848.    17  Law  J.  Ch.  [N.  S.]  145.) 

The  bill  stated  that  by  a  settlement  made  upon  the  marriage  of 
William  Smith,  since  deceased,  and  Caroline,  his  wife,  dated  the  22d 
of  September,  1807,  certain  freehold  estates  were  conveyed  and  settled 
to  the  use  of  W.  Smith  and  Caroline  his  wife  for  their  respective  lives. 
and  after  the  decease  "ot  the  survivor,  to  the  use  ot  all  or  any  of  the 
child  or  children  of  the  said  marriage,  as  W.  Smith  and  his  wife  should 
jointly  appoint,  and  in  default  of  joint  appointment  then  as  the  sur- 
vivor should  appoint.  The  husband  became  the  survivor.  The  power 
was  to  be  exercised  by  any  deed_or  deeds,  writing  or  writings,  with 
or  without  power  of  revocation,  to  be  by  him  sealed  and  delivered  in 
manner  therein  mentioned,  or  by  his  last  will  and  testament  in  writ- 
ing; and  in  default  of  such  appomtment,  to  the  use  of  all  the  said 
children  equally  to  be  divided  between  them  as  tenants  in  common. 
That  Caroline  Smith  died  in  March,  1837,  and  there  were  issue  of  the 
said  marriage  five  children  living,  and  also  several  other  children,  all 
of  whom  died  in  infancy  without  leaving  issue ;  that  W.  Smith  and 
Caroline  his  wife  never  exercised  the  joint  power  of  appointment 
amongst  the  children ;  that  W.  Smith  executed  a  deed-poll  bearing 
date  the  5th  of  February,  1842,  which  recited  that  the  real  estates  had 
been  sold  and  converted  into  money  under  the  powers  in  the  settle- 
ment ;  that  W.  Smith  had  never  in  any  manner  exercised  the  power 
of  selection  or  distribution  of  or  among  the  children  of  his  marriage 
with  the  said  Caroline  his  wife,  given  or  reserved  to  him  by  the  in- 
denture of  the  22d  of  September,  1807,  as  aforesaid,  and  that  he  was 
desirous  of  absolutely  releasing  and  extinguishing  such  power ;  that 
by  the  said  deed-poll  William  Smith  did  absolutely  and  for  ever  re- 
lease and  discharge  the  hereditaments  comprised  in  the  said  recited 
indenture  of  the  22d  of  September,  1807,  and  the  proceeds  of  the  sale 
thereof,  and  the  stocks,  funds,  and  securities  representing  the  same, 
or  any  part  thereof,  and  all  lands  and  hereditaments,  if  any,  purchas- 
ed or  to  be  purchased  with  such  proceeds,  stock,  funds,  and  securities 
respectively,  or  any  parts  thereof  respectively,  and  all  and  every  per- 
son and  persons  who  might  become  interested  therein  respectively, 
from  tli^jjower,  and  all  right  and  title  to  exercise  the  power  of  selec- 
tion or  distribution  of  or  among  the  children  of  the  marriage  of  Wil- 
liam Smith  with  the  said  Caroline  his  late  wife,  given  or  reserved  to 

9  Accord:  Smith  v.  Death,  5  Mad.  871  (1820);  Bickley  v.  Guest,  1  Russ. 
&  M.  440  (1830). 


:U2  POWERS  (Part  3 

him,  William  Smith,  in  and  by  the  said  indenture  of  the  22d  of  Sep- 
tember, 1807,  as  aforesaid,  to  the  intent  that  such  power  and  all  right 
and  title  to  exercise  the  same  might  thenceforth  be  absolutely  releas- 
ed and  extinguished,  and  be  of  no  efifect,  in  like  manner  as  if  such 
power  had  never  been  given  or  reserved  to  William  Smith. 

The  bill  then  stated  that  Wiljiam  Smith  macje^  his  .will,  dated  the 
22d  of  May,  1843,  and  thereby,  after  referring  tothe  power  of  ap:^- 
pointment  given  him  by  the  settlement  of  September,  1807,  the  testa- 
tor in  execution  of  the  said  power  gave  and  bequeathed  to  his  eldest 
son  William  Haden  Smith  the  sum  of  £4000  stock ;  to  his  son  Joseph 
Smith  £10,000  stock,  and  to  his  daughter  Elizabeth  Caroline  £100 
stock,  which  said  several  sums  comprised  nearly  the  whole  of  the 
produce  of  the  sales  of  the  estates  mentioned  in  and  sold  under  the 
said  settlement. 

The  suit  was  instituted  to  carry  the  trusts  of  the  deed  of  settlement 
of  1807  into  effect,  and  the  bill  prayed  that  in  case  the  court  should 
be  of  opinion  that  the  deed-poll  of  the  5th  of  February,  1842,  was 
inoperative,  the  same  might  be  declared  void  and  be  delivered  up  to 
be  cancelled,  and  that  the  will  and  testamentary  appointment  of  the 
22d  of  May,  1843,  might  be  established,  and  that  the  rights  of  all  par- 
ties under  the  deed  of  settlement,  the  deed  of  appointment  and  the 
will,  might  be  ascertained  and  declared  by  the  court. 

The;  VicH-ChancELLOR  decided  that  the  release  of  the  power  effert- 
ed  by  the  deed-poll  of  February,  1842,  was  valid  and  effectual,_and_ 
tliat  the  children  of  the  testator  were  consequently  entitled  to~*share 
t h e  property  in  equal  proportions  under  the  marriage  settlement  of 
September,  lc5U/,  as  in  default  of  appointment, ^° 


HORNER  v.  SWAN. 

(Court  of  Chancery,  1823.    Turn.  &  R.  430.) 

W^illiam  Horner  being  seised  of  the  premises  in  question,  subject  to 
a  joint  power  of  appointment  by  him  and  his  father,  which  was  not 
exercised,  devised  to  Mansfield  and  Holloway,  and  their  heirs,  all  his 
real  and  personal  estate,  to  hold  the  same  unto  the  use  of  them,  their 
heirs,  &c.  upon  trust  "to  permit  his  wife,  Elizabeth  Horner,  to  use  the 
same  fc2rjier  use^  and  for  the  purpose  ofjTiaintaining  his  childrenj.n>_ 
til  they  should  attain  the  age  of  twenty-one,  and  durmg  her  life  in 
case  she  should  so  long  continue  his  widow:  and  after  heF decease, 
then  forsuch  or  all  of  his  children  and  their  respecEyeTIaMllLissue, 
anci  tor  sudTestates,"  &c.,  as  his  wife  by  lieFTasLAYJll,  or  by  any  wrTt^ 
ing  purporting  to  be  her  will,  &c.,  should  give,  devise,  aiid  bequeath 
the  same ;    and  in  default  of  such  will,  itT'trust  for  all  and  ev^r}^  his 

10  See  Atkinson  v.  Bowling,  33  S.  C.  414,  12  S.  E.  93  (1890). 


Ch.  1)  OPERATION,  CLASSIFICATION,  RELEASE  AND  DISCHARGE  313 

children  living  at  his  decease,  or  born  in  due  time  afterwards,  and  their 
heirs.  &"crrcspectively,  share  and  share  alike  ;  but  if  any  of  them  died 
under  twenty-one,  without  leaving  lawfuTTssue,  tlien~in  trust,  as  to 
the  share'o^r  shares  of  sucn  cnild  or  children,  for  the  survivors  or 


survivor,  and  their  respective  heirs,  &c.,  share  and  share  alike.  He 
subsequently  directed,  that,  in  case  his  wife  should  marry  again,  the 
trustees  should  convey  and  assign  to  each  of  his  children  successively, 
upon  their  respectively  attaining  the  age  of  twenty-one,  so  much  of 
the  real  and  personal  property  as  would  amount  to  his  or  her  equal 
share  thereof;  and  in  case  anv  of  his  children  should  die  after  his 
wife  should  marrv  again,  and  leave  lawful  issue,  he  gave  to  thp  it^p  of 
the  ^aid  issue,  their  heirs.  Szc,  the  same  proportion  of  his  real  and 
per,sonalproperty  as  their  father  or  mother  would  havp  been  entitled 


to,  in  case  he  or  she  had  lived  to  attain  twentv-oiie  :  but  in  case  anv 
of  his  children  should  die,  after  his  wife  should  marry  again,  without 
leaving  lawful  issue,  he  directed  that  the  share  of  such  child  should  go 
to  the  survivor. 

The  testator  left  a  widow  and  four  children,  all  of  whom  attained 
twenty-one.  Une  of  them  diecTsubseguentlv.  leaving  her  eldest  broth- 
er^ her~heir  atlaw^  "Tlie  widow"  and  the  three  surviving  childrencon- 
tracted  to  sell  the  devised  estate;  and  the  bill  was  filed  by  them  for 
the  specific  pertormance  of  the  contract. 

The  purchaser,  by  his  answer,  submitted  that  thp  pIninfifFc;  ron1d 
not  make  a  good  title  by  reason  of  the  widow's  power  of  appointing 
b^^_wilL-and  of  the  contingent  interests  given  to  the  issue  of  the  chil- 
(iten. 

Mr.  Sugden  and  Mr.  Sidebottom,  for  the  plaintiffs. 

The  question  is,  whether  the  wife's  power  can  be  released  or  extin- 
guished. It  is  not  a  power  simplv  collateral,  but  is  a  power  in  gross, 
and  is  therefore  capable  of  being  destroyed  by  the^donee ;  and  the 
circumstance,  that  it  is  to  be  exercised  in  favor  of  a  limited  class  of 
objects,  namely,  the  children  or  their  issue,  does  not  alter  its  nature. 
The  point,  though  once  regarded  as  liable  to  doubt,  must  now  be  con- 
sidered as  settled ;  for  it  was  expressly  decided  in  Smith  v.  Death,  5 
Mad.  371. 

Mr.  Coop_er,  contra. 

It  has  hitherto  been  considered  a  very  doubtful  question,  whether 
such  a  power,  as  is  here  given  to  the  widow,  can  be  destroyed.  "Law- 
yers"  cTgreat  eminence,"  says  a  text-writer,  "have  been  of  opinion, 
that  a  power  to  a  tenant  for  life,  to  appoint  the  estate  among  his  chil- 
dren, is  a  mere  right  to  nominate  one  or  more  of  a  certain  number  of 
objects  to  take  the  estate ;  and  that,  consequently,  it  is  merely  a  pow- 
er of^selection.  and  cannot  be  barred  bv  fine."  Sugden  on  Powers, 
73,  5th  edition.  In  Jesson  v.  Wright,  2  Bligh,  15,  Lord  Redesdale 
says,  "How  can  a  man,  having  a  power  for  the  benefit  of  children,  de- 
stroy it?"     Tomlinson  v.  Dighton,  1  P.  Wms.  149,  leans  toward  the 


314  POWERS  (Part  3 

same  conclusion.  The  solitary  decision  in  Smith  v.  Death  cannot  be_ 
considered  as  determining^jHepoint  so  conclusively,  that  the  court 
will  rnmpol  ajgurchaser_to^a.ccept  a  title  like  this. 

Tni^MASTUR  OF  the;  Rolls  [Sir  Thomas  Plumer].  The  Vice- 
Chancellor  has  given  a  solemn  opinion  upon  the  point;  and  his  de- 
cision has  been  acquiesced  in.    I  shall  therefore  follow  it. 

As  to  the  second  point  raised  by  the  answer,  it  was  admitted,  that, 
upon  the  true  construction  of  the  will,  none  of  the  limitations  over 
could  take  effect,  when  all  the  children  had  attained  twenty-one. 

Decree  for  specific  performance.^^ 

iiAccord:  Barton  v.  Briscoe,  Jae.  603;  Davies  v.  Hiiguenin,  1  Hem.  & 
Mil.  730;  Columbia  Trust  Co.  v.  Christopher,  133  Ky.  335,  343,  117  S.  W. 
943 ;  Grosvenor  v.  Bowen,  15  E.  I.  549,  10  Atl.  589  (semble) ;  Thorington  v. 
Thorington,  82  Ala.  489,  1  South.  716  (semble).  In  Thomson's  Executors  v. 
Norris,  20  N.  J.  Eq.  489,  the  release  by  the  donee  for  bis  own  special  ad- 
vantage  was  set  aside  as  a  fraud  upon  rue  power: 


Ch.  2)    APPOINTMENTS  IN  FRAUD CONTRACTS  TO  APPOINT      315 


CHAPTER  II 

CONTRACTS  TO  APPOINT  AND  APPOINTMENTS  IN 
FRAUD  OF  THE  POWER 


LEAKE,  DIGEST  OF  LAND  LAW  (2d  Ed.)  pp.  311-313: 
"  *  *  *  If  an  appointment,  though  correct  in  point  of  form  and 
operative  at  law,  be  made  for  any  indirect  or  ulterior  purpose  not_ 
warranted  by  the  power,  it  will  be  set  aside  in  equity  as  a  fraud  on 
the  power.  (Portland  [Duke]  v.  Topham.  11  H.  L.  C.  32;  34  L.  J. 
.C.  113  ;  Topham  v.  Portland  [Duke],  L.  R.  5  Ch.  40;  39  L.  J.  C.  259; 
Sugden,  Powers,  606;  notes  to  Aleyn  v.  Belchier,  1  Eden,  132;  2 
Wh.  &  T.  L.  C.  Eq.  308.)  *  *  *  Where  a  father,  having  a  power 
of  appointment  amongst  children,  appointed  to  one  who  was  a  luna- 
tic and  likely  to  die,  for  the  purpose  of  himself  succeeding  to  the 
appointed  share  as  bis  representative,  the  appointment  was  held  to 
be  fraudulent  against  the  other  objects  of  the  power  and  void.  (Wel- 
lesley  v.  Mornington  [Earl],  2  K.  &  J.  143.)" 

"If  a  parent,  having  a  power  of  appointnuent  amongst  his  children, 
execute  it  m  consideration  of  some  immediate  benefit  to  be  derived 
to  hmiselt  trom  the  appointment,  as  upon  an  agreement  with  the  ap- 
pointee  for  a  payment  or  advance  of  money,  the  appointment  is  void 
as  being  in  fraud  of  the  power  in  regard  to  the  other  children ;  and 
as  the  appointee  is  a  participator  in  the  fraud  and  benefits  by  it,  such 
appointment  will  be  set  aside  in  toto,  and  not  merely  to  the  extent 
of  the  sum  (if  any)  diverted  from  the  objects  of  the  power.  (Daubeny 
V.  Cockburn,  1  Mer.  626;  Farmer  v.  IMartin,  2  Sim.  502;  Arnold  v. 
Hardwick,  7  Sim.  343 ;  Re  Perkins,  [1893]  1  Ch.  283 ;  62  L.  J.  Ch. 
531 ;  Jackson  v.  Jackson,  Drury,  91.  See  Palmer  v.  Wheeler,  2  Ball 
&  B.  18 ;  Hall  v.  Montague,  8  L.  J.  O.  S.  C.  167.) 

"Where  the  consideration  for  the  preference  of  one  of  the  children 
is  given  by  another  person,  and  not  derived  out  of  the  property  ap- 
pointed, and  though  without  the  knowledge  of  the  appointee,  the  ap- 
pointment will  be  set  aside ;  for  it  is  a  fraud  upon  the  power  in  regard 
to  the  other  objects  who  are  thereby  excluded  from  the  property 
appointed.    (Rowley  v.  Rowley,  1  Kay,  242 ;  23  L.  J.  C.  275.)" 

"An  appointment  made  upon  any  bargain  or  imdp^'^'^r'^""^i"^tT  tliat  tlip 
appointee  shall  dispose~ot  the  property  to  persons  who  are  not  objects 
of  the  poweris  void  and  will  be  set  aside.  (Sugden,  Powers,  615; 
Sa!rFiiorrvrGiEBs7Tl)e  G.  &  Sm.  343 ;  18  L.  J.  C.  177;  Birley  v.  Bir- 
ley,  25  Beav.  308 ;  27  L.  J.  C.  569 ;  Pryor  v.  Pryor,  2  De  G.  J.  &  S. 
33 ;  33  L.  J.  C.  441  ;  Re  Kirwan's  Trusts,  25  Ch.  D.  373 ;  52  L.  J.  C. 
952.)    An  appointment  made  for  the  purpose  and  in  the  expectation 


31G  POWERS  (Part  3 

that  the  appointee  would  transfer  the  property  to  a  person,  not  an 
object  of  the  power,  was  held  void,  though  that  purpose  was  not  at 
the  time  communicated  to  the  appointee.  (Re  Marsden's  Trust,  4 
Drew.  594;  28  L.  J.  C.  906.)" 


PALMER  V.  LOCKE. 

(Chancery  Division,  Court  of  Appeal,  1880.    15  Ch.  Div.  294.) 

Judah  Guedalla,  by  his  will,  dated  the  21st  of  December,  1839,  gave 
his  residuary  personal  estate  to  three  trustees  upon  trust  to  sell  and 
convert  the  same  and  to  hold  the  proceeds,  as  to  one  third  part  thereof, 
upon  the  trusts  therein  declared  during  the  life  of  his  son  Moses 
Guedalla,  and  after  his  death  upon  trust  for  his  wife  during  her  life, 
and  after  the  death  of  the  survivor  in  trust  for  such  of  the  children 
of  his  said  son  ]\Ioses  by  his  present  or  any  future  wife,  or  the  issue 
born  in  his  lifetime  of  such  children,  with  such  provisions  for  their 
maintenance,  and  at  such  ages  and  lawful  times,  and  upon  such  con- 
ditions as  his  said  son  Moses  by  his  last  will  or  any  codicil  thereto 
should  direct  or  appoint ;  and  in  default  of  such  direction  or  appoint- 
ment, and  so  far  as  the  same,  if  incomplete,  should  not  extend,  in  trust 
for  all  the  children  of  his  said  son  Moses  who  should  attain  the  age 
of  twenty-one  years  or  marry  under  that  age. 

Judah  Guedalla  died  in  1858. 

INIoses  Guedalla  had  six  children,  one  of  whom  was  Joseph  Guedalla. 

Moses  Guedalla  made  his  will,  dated  the  4th  of  January,  1873,  and 
thereby,  after  reciting  the  power  of  appointment  given  to  him  by  his 
father's  will,  in  exercise  of  the  said  power  directed  that  the  trustees  or 
trustee  for  the  time  being  of  his  father's  will  should  out  of  the  said 
third  part  of  the  residuary  estate  pay  to  his  son  Joseph  Guedalla  £5000, 
and  appointed  the  remainder  of  the  third  part  to  his  other  children  in 
different  proportions. 

On  the  19th  of  February,  18/3,  Moses  Guedalla  executed  a  bond  for 
£5000  to  his  son  Joseph  Guedalla,  in  which  he  recited  the  power  of 
appointment  contained  in  Judah  Guedalla's  will,  and  that  he  intended 
to  appoint  or  give,  or  had  appointed  or  given,  by  will  or  codicil  pur- 
suant to  the  recited  will  or  otherwise,  the  sum  of  £5000  at  the  least  to 
his  said  son  Joseph  Guedalla,  either  out  of  the  property  subject  to  the 
recited  will  or  the  property  of  the  said  Moses  Guedalla,  and  by  way  of 
making  the  said  Joseph  Guedalla  entitled  in  any  event  to  that  sum  on 
the  death  of  the  said  Moses  Guedalla,  either  in  possession  or  in  rever- 
sion on  the  death  of  his  present  wife,  the  said  Moses  Guedalla,  by 
way  of  advancement  for  his  son  and  to  forward  his  prospects  in  life, 
had  determined  and  agreed  to  execute  the  above  Avritten  bond.  The 
condition  of  the  bond  was  that  it  should  be  void  if  Moses  Guedalla 
should  by  his  last  will  or  any  codicil  thereto  appoint  or  give  the  sum 
of  £5000  at  the  least  to  Joseph  Guedalla  absolutely,  either  under  the 


Ch.  2)    APPOINTMENTS  IN  FRAUD CONTRACTS  TO  APPOINT      317 

recited  will  of  the  said  Judah  Guedalla  or  out  of  the  property  of  the 
said  Moses  Guedalla,  subject  only  to  the  life  interest  of  his  present 
wife;  and  if  such  sum,  or  any  part  thereof,  should  be  given  out  of 
the  property  of  the  said  Moses  Guedalla,  then  if  such  property  should 
be  sufficient  to  make  good  the  same ;  or  if  the  said  Joseph  Guedalla 
should  on  the  decease  of  Moses  Guedalla  become  entitled  in  default 
of  appointment  or  otherwise  to  such  sum  under  the  said  recited  will. 

On  the  23d  of  April,  1873,  Joseph  Guedalla  mortgaged  his  interest 
under  Judah  Guedalla's  will  to  George  Gilliam  for  £600,  with  a  power 
of  sale  in  case  of  default  of  payment. 

Moses  Guedalla  died  on  the  24th  of  September,  1875.  His  widow 
was  still  living. 

By  subsequent  assignments  the  reversionary  interest  of  Joseph  Gue- 
dalla became  vested  in  the  plaintiffs,  and  they  put  it  up  for  sale  by 
auction  on  the  1st  of  May,  1879,  when  it  Avas  purchased  by  the  de- 
fendants for  £2000.  Difficulties  having  arisen  respecting  the  title  to 
the  property  sold,  the  plaintiffs  brought  the  present  action,  claiming 
specific  performance  of  the  contract  for  sale. 

The  court  directed  a  reference  as  to  the  title,  and  the  conveyancing 
counsel  of  the  court  to  wdiich  it  had  been  referred  reported  that  a  good 
title  could  not  be  made,  on  the  ground  that  the  appointment  made  by 
the  will  of  Moses  Guedalla  was  in  discharge  of  his  own  personal  lia- 
bility under  his  bond,  and  w^as  void  on  the  authority  of  Sugden  on 
Powers,  8th  ed.  p.  615;  Reid  v.  Reid,  25  Beav.  469;  Duke  of  Port- 
land v.  Topham,  11  H.  L.  C.  54. 

The  Chief  Clerk  having  certified  in  accordance  with  this  opinion,  the 
plaintiffs  took  out  a  summons  to  vary  the  certificate,  w^hich  was  ad- 
journed into  court. 

The  summons  came  on  to  be  heard  on  the  19th  of  April,  18S0. 

Jessel,  M.  R.  I  decide  this  case  simply  on  authority ;  and  the  most 
singular  part  of  it  is  that  I  concur  so  much  in  the  reasoning  of  the 
decision  in  Coffin  v.  Cooper,  2  Dr.  &  Sm.  365,  which  I  am  bound  to 
follow,  that  it  makes  it,  if  I  may  say  so,  more  obligatory  on  me  to  fol- 
low that  authority,  because  that  case,  which  was  decided  in  the  year 
1865  by  Vice-Chancellor  Kindersley,  lays  down  what  appears  to  me 
the  true  principle  which  should  govern  Courts  of  Equity  in  cases  of 
this  kind  so  clearly  and  forcibly  that  I  think  I  should  only  diminish 
instead  of  adding  to  the  weight  of  that  judgment  by  any  observations 
of  my  own.  But  in  that  case,  even  in  tli:  then  state  of  the  authorities, 
the  Vice-Chancellor  thought  he  was  compelled  to  decide  against  his 
own  opinion  of  what  the  true  principle  was;  and  he  actually  decided 
that  a  covenant  by  a  lady  to  make  an  appointment  in  favor  of  her  son 
for  the  very  purpose  of  enabling  him  to  borrow  money,  although  the 
appointment  was  to  be  testamentary,  was  a  valid  covenant  which  would 
render  her  estate  liable  in  damages,  and  that  if  she  made  the  appoint- 
ment in  pursuance  of  the  covenant,  so  as  to  exonerate  her  estate  from 
that  liability  to  damages,  the  appointment  was  a  valid  appointment. 


318  POWERS  (Part  3 

Now  there  is  no  possible  distinction  worth  considering  between  the 
present  case  and  the  case  of  Coffin  v.  Cooper.  Of  course,  it  makes  no 
real  difference  whether  the  case  is  one  of  a  bond  or  a  covenant.  You 
can  recover  under  the  bond  only  the  actual  damages  sustained ;  though 
if  the  amount  of  damages  exceeds  the  amount  of  the  penalty,  you  can 
recover  no  more  than  the  penalty. 

Then  it  is  suggested  that  the  bond  here  was  only  defeasible  in  case 
the  obligor  paid  the  amount  out  of  his  own  property ;  but  so  it  would 
have  been  if  he  had  not  said  so.  If  it  was  only  defeasible  as  it  was 
in  Coffin  v.  Cooper  you  could  only  have  got  the  amount  of  damages 
sustained,  and  if  the  estate  of  the  covenantor  or  obligor  had  paid  dam- 
ages the  covenant  or  bond  would  have  been  got  rid  of.  So  that  the 
provision  or  condition  that  if  the  money  is  paid  the  covenant  or  bond 
shall  be  void  makes  no  difference,  because  in  no  case  can  you  recover 
under  the  covenant  or  bond  more  than  the  amount  of  the  damages  sus- 
tained. The  present  case  is,  to  my  mind,  utterly  undistinguishable 
from  that  of  Coffin  v.  Cooper.  It  makes  no  difference  whether  or  not 
it  is  expressed  in  terms  that  the  payment  out  of  the  obligor's  own  es- 
tate shall  or  shall  not  satisfy  the  bond. 

That  being  so,  and  finding  the  exact  point  decided  by  Vice-Chancel- 
lor  Kindersley,  as  I  said  before,  so  long  ago  as  1865,  and  that  case  not 
having  been  disturbed  since  in  any  way,  and  finding  that  the  decision 
was  based  upon  the  then  state  of  the  authorities, — which  it  is  unneces- 
sary for  me  to  examine  again, — I  think  it  is  impossible  for  a  court  of 
first  instance  to  say  that  that  decision  was  erroneous.  But  I  must  also 
mention  that  the  matter  came  before  the  Court  of  Appeal  in  1870  in 
Bulteel  V.  Plummer,  Law  Rep.  6  Ch.  160,  where  Lord  Hatherley,  who 
was  then  Lord  Chancellor,  states  most  distinctly  his  concurrence  in 
the  decision  of  Vice-Chancellor  Kindersley ;  and  I  concur  in  his  opin- 
ion. In  fact.  Lord  Hatherley  says  this  (Law  Rep.  6  Ch.  163) :  "To 
hold  such  an  appointment  bad  as  a  device  would  be  to  strain  the  doc- 
trine as  to  improper  appointments  too  far."  If  the  decision  of  the 
Vice-Chancellor  needed  confirmation  or  approval,  we  have  it  in  this 
dictum  of  the  Lord  Chancellor  in  Bulteel  v.  Plummer. 

Therefore  I  must  decide  in  favor  of  the  plaintiff's,  and  hold  that  the 
appointment  was  valid. 

From  this  decision  the  defendants  appealed.  The  appeal  came  on 
to  be  heard  on  the  26th  of  July. 

James,  L.  J.  I  am  of  opinion  that  the  decision  of  the  Master  of  the 
Rolls  must  be  affirmed.  He  found  himself  bound  by  the  decision  of 
Vice-Chancellor  Kindersley  in  Coffin  v.  Cooper,  2  Dr.  &  Sm.  365,  and 
Vice-Chancellor  Kindersley  was  rightly  bound  by  what  he  considered 
to  be,  and  what  I  consider  to  be,  the  common  course  of  decision,  which 
really  prevented  this  point  from  being  successfully  raised.  It  had  been 
decided  in  various  cases  that  such  a  power  as  this  could  be  released, 
because,  although  in  some  sense  it  is  fiduciary,  it  is  fiduciary  only  to 
this  extent,  that  the  donee  of  the  power  cannot  use  it  for  any  corrupt 


Ch.  2)    APPOINTMENTS  IN  FRAUD CONTRACTS  TO  APPOINT      319 

purpose,  cannot  use  it  for  any  purpose  of  benefiting  himself  or  op- 
pressing anybody  else.  This  was  so  decided  in  the  case  of  the  Duke 
of  Portland  v.  Topham ;  and  it  is  sufficient  to  say  that  I  agree  with 
what  Lord  Chancellor  Hatherley  said,  that  to  hold  that  such  an  ap- 
pointment as  this  is  void  because  there  has  been  a  deed  of  covenant 
executed  previously,  would  be  to  strain  the  doctrine  of  improper  ap- 
pointment beyond  anything  which  the  cases  require.  In  my  opinion, 
it  would  be  to  strain  it  most  improperly,  and  in  effect  to  shake  a  great 
number  of  appointments  which  I  have  not  the  slightest  doubt  have  been 
considered  sound  both  before  and  since  the  decision  of  Vice-Chancellor 
Kindersley. 

With  regard  to  the  other  point,  it  seems  to  me  that  you  cannot  act 
upon  suspicion.  It  is  said  the  will  made  in  January  was  void  by  rea- 
son of  a  bond  made  six  weeks  afterwards,  and  it  is  supposed  there 
was  some  corrupt  bargain  between  father  and  son,  of  which  there  is 
not  the  slightest  trace,  and  which  you  may  as  well  suppose  in  every 
case  where  there  is  a  testamentary  appointment  made.  It  may  be  said, 
"How  do  you  know  he  was  not  bribed  ?  How  do  you  know  that  there 
was  not  some  corrupt  object?"  In  the  absence  of  some  ground  for 
supposing  it,  we  must  assume  everything  was  done  rightly,  otherwise 
the  result  would  be  that  every  disposition  made  under  a  power,  whether 
testamentary  or  otherwise,  -given  to  a  father  for  his  children  would  be 
laid  under  suspicion  when  the  father  is  dead,  for  it  would  be  almost 
impossible  to  prove  that  there  was  not  some  bargain  between  them. 
I  am  of  opinion  the  decision  ought  to  be  affirmed,  and  the  appeal  must 
be  dismissed  with  costs. 

Brett,  L.  J.  I  should  have  thought  it  very  dangerous,  unless  there 
were  some  principle  very  clearly  outraged,  to  overrule  the  decision  of 
Coffin  V.  Cooper,  2  Dr.  &  Sm.  365,  which  was  decided  so  long  ago, 
and  which  has  probably  been  acted  upon ;  but  I  confess  that  it  seems 
to  me  that,  according  to  principle,  the  case  of  Coffin  v.  Cooper  was 
right.  To  my  mind  it  does  not  make  any  difference  whether  the  cov- 
enant in  this  case  was  entered  into  before  or  after  the  will  was  ex- 
ecuted. If  I  thought  that  the  covenant  was  binding  upon  the  person 
who  entered  into  it,  I  should  have  felt  some  difficulty,  because  then  it 
might  be  said,  and  truly  said,  as  it  seems  to  me,  that  the  exercise  of 
the  appointment  would  be  an  exercise  made  to  the  advantage  of  the 
person  making  it,  that  is  to  say,  that  the  effect  of  it  would  be  to  re- 
lieve his  estate  from  an  obligation  into  which  he  had  entered.  But  I 
must  confess  that  I  agree  entirely  with  the  view  which  was  taken  by 
Lord  Justice  James  in  Thacker  v.  Key,  Law  Rep.  8  Eq.  408,  that  such 
a  covenant  as  is  here  in  question,  and  as  was  in  question  in  Coffin  v. 
Cooper  is  a  wholly  void  covenant,  and  that  no  remedy  could  be  had 
upon  that  covenant  against  the  covenantor.  If  a  consideration  was 
given  for  the  covenant,  then  it  is  admitted  by  everybody  that  it  would 
be  absolutely  fraudulent,  and,  if  fraudulent,  it  would  be  of  course  void, 
because  both  parties  are  parties  to  the  fraud.     It  seems  to  me  that  al- 


320  POWERS  (Part  3 

though  there  is  no  consideration  given  for  the  covenant  it  is  not  a 
bhiding  covenant,  because  it  would  be  contrary  to  pubhc  poHcy  to  al- 
low a  person  in  the  position  of  a  trustee  to  enter  into  such  a  covenant 
so  as  to  bind  himself.  And  if  the  covenant  is  a  void  covenant,  then 
what  is  the  fetter  which  is  put  upon  the  exercise  of  the  power  of  ap- 
pointment which  has  been  delegated  to  the  donee  of  the  power?  Un- 
der those  circumstances  there  is  no  fetter  at  all,  unless  it  be  said  that 
a  bare  promise  which  cannot  be  enforced,  a  moral  obligation,  as  it  is 
called,  to  keep  a  bare  promise,  is  such  a  fetter.  Now  the  law,  at  all 
events,  does  not  recognise  that  there  is  any  fetter  in  a  bare  promise, 
and  I  can  see  none  really ;  and  if  you  take  it  to  be  a  bare  promise  and 
not  an  effective  covenant,  then  I  should  absolutely  agree  with  what 
Lord  Justice  James  has  before  said,  and  which  was  adopted  by  Lord 
Hatherley,  namely,  that  it  would  be  far  too  great  a  strain  to  say  that  a 
mere  bare  promise  is  to  be  considered  a  fetter  upon  the  power  of  ap- 
pointment, because  there  is  a  kind  of  moral  obligation  to  keep  the 
promise.  I  confess  myself  I  do  not  think  there  is  any  such  moral  ob- 
ligation as  is  asserted;  I  think  the  morality  cf  the  thing  is  in  favor 
of  the  breach  of  such  a  promise  rather  than  in  favor  of  keeping  it. 
Therefore,  for  these  reasons,  both  upon  principle  and  authority,  it 
seems  to  me  that  there  is  no  objection  to  the  exercise  of  the  appoint- 
ment because  of  the  existence  of  the  void  covenant.  It  was  suggested 
that  by  so  holding  we  should  destroy  the  effect  of  these  powers  of  ap- 
pointment. It  seems  to  me  absolutely  the  contrary.  We  give  them  the 
greatest  possible  effect,  because  we  say  that  no  such  covenant  as  this 
can  prevent  the  exercise  of  the  power  of  appointment,  that  is  to  say, 
that  the  person  who  has  entered  into  such  a  covenant  may,  without  any 
risk,  exercise  his  discretion  up  to  the  last  day  of  his  life.  If  such  a 
covenant  as  this  were  held  to  be  a  release,  then  the  former  decisions 
with  regard  to  release  might  be  a  considerable  difficulty  in  the  way,  but 
it  seems  to  me  that  it  cannot  possibly  be  said  that  such  a  covenant  as 
this  is  a  release.  As  to  the  case  of  Davies  v.  Huguenin,  1  H.  &  M. 
730,  which  is  referred  to  in  the  judgment  of  Vice-Chancellor  Kinders- 
ley,  I  confess  that  as  stated  by  him  I  have  some  difficulty  in  saying 
that  I  could  entirely  agree  with  what  was  held  in  Davies  v.  Huguenin ; 
but  it  seems  to  me  that  even  if  Davies  v.  Huguenin  were  held  to  be 
wrong  that  would  have  no  effect  upon  the  decision  in  this  case. 

With  regard  to  the  second  point  in  this  case,  taken  at  a  late  moment, 
I  think  there  can  be  no  doubt  the  suggestion,  if  true,  would  show  that 
the  covenant  was  a  fraudulent  agreement  between  both  parties  to  it, 
and  fraud  is  never  presumed  by  the  court;  those  who  suggest  it  have 
to  prove  it. 

Cotton,  L.  J.  I  am  of  opinion  that  the  decision  of  the  Master  of  the 
Rolls  is  correct;  and  from  the  judgment  of  the  Master  of  the  Rolls 
which  has  been  read  to  us,  I  think  that  our  decision  is  also  in  accord- 
ance with  the  views  of  the  Master  of  the  Rolls;  but  whether  that  is  so 
or  not,  I  think  that,  both  on  authority  and  principle,  the  judgment  that 


Ch.  2)    APPOINTMENTS  IN  FRAUD CONTRACTS  TO  APPOINT       321 

was  given  was  right.  It  was  said  that  this  was  a  fiduciary  power,  and 
that  therefore  the  donee  of  the  power  was  in  the  position  of  a  trustee, 
and  must  be  so  down  to  the  time  of  his  death,  absohitely  unfettered. 
Now  I  asked  Mr.  Davey,  during  the  course  of  his  argument,  how  he 
could  develop  and  define  a  fiduciary  power,  and  I  leave  out  entirely 
that  kind  of  fiduciary  power,  if  it  is  so  called,  where  from  the  form 
of  the  power  given  there  is  an  implied  gift  in  default  of  an  express 
gift.  Cut  a  fiduciary  power  in  this  case  one  must  consider  as  a  power 
which  is  sometimes  said  to  be  given  to  the  person  as  a  trustee.  Now  I 
think  a  great  deal  of  inaccurate  argument  arises  from  expressions  un- 
developed and  not  explained  which  may  bear  two  senses.  How  can 
you  say  that  a  man  is  properly  a  trustee  of  a  power?  As  I  under- 
stand it,  it  means  this,  in  the  words  of  Lord  St.  Leonards,  that  it 
must  be  fairly  and  honestly  executed.  A  donee  of  such  a  power  can- 
not carry  into  execution  any  indirect  object  or  acquire  any  benefit  for 
himself  directly  or  indirectly.  That  is,  it  is  something  given  to  him 
from  which  he  is  to  derive  no  beneficial  interest.  In  that  sense  he  is 
a  trustee,  and  he  is  liable  to  all  the  obligations  of  a  trustee  in  this  sense, 
that  he  must  not  attempt  to  gain  any  indirect  object  by  the  execution 
of  the  power  in  a  way  which  in  form  is  good,  but  which  is  a  mere 
mask  for  something  that  is  bad.  Now  it  is  not  here  suggested,  or 
barely  suggested,  that  the  appointment  was  a  mask  to  do  something 
which  could  not  be  done.  It  was  an  absolute  gift  to  his  son  in  effect, 
with  a  covenant  or  bond  that  he  would  not  revoke  the  appointment  in 
favor  of  the  son,  but  there  was  no  possible  suggestion,  with  one  ex- 
ception, that  the  intention  was  in  any  way  to  benefit  himself.  It  was 
done  for  his  son ;  taking  the  whole  transaction,  it  was  what  he  thought 
would  be  best  for  the  interests  of  the  son,  and  it  is  clearly  the  duty 
of  a  father,  who  has  such  a  power,  to  do  what  on  the  whole  he  con- 
siders to  be  the  best  for  the  family  amongst  whom  the  property  is  un- 
der the  powxr  to  be  distributed. 

There  are  two  matters,  no  doubt,  which  I  must  deal  with.  It  was 
said  that  the  execution  of  the  power  by  the  will  was  to  relieve  the 
father  from  the  obligation  which  he  contracted  under  the  bond.  I  do 
not  go  so  far  as  to  give  an  opinion  that  the  bond  is  absohitely  bad.  The 
question  may  hereafter  arise,  but  I  give  no  opinion  upon  that  point  at 
present.  In  one  sense  it  is  clearly  bad,  namely,  that  it  cannot  be  con- 
strued as  an  exercise  of  a  power  of  appointment,  nor  is  it  one  that  a 
Court  of  Equity  would  specifically  perform;  but  I  do  not  give  any 
opinion  that  it  is  one  under  which  no  relief  could  be  sought  by  way  of 
damages  from  the  father's  estate.  But  in  reality  the  will  was  not  ex- 
ecuted in  order  to  relieve  the  father  from  the  obligation.  The  obliga- 
tion began  after  the  will  was  executed,  and  the  whole  was  one  trans- 
action, and  if  anything,  it  was  a  contract  not  to  revoke  the  will  which 
he  had  made.  But  it  is  not  every  possible  benefit  to  the  donee  of  a 
power  from  the  exercise  of  it  which  will  make  the  execution  of  the 
4  Kales  Prop. — 21 


322  POWERS  (Part  3 

power  bad.  Mr.  Davey  went  so  far  as  to  say — I  think  his  argument 
necessitated  it — that  a  moral  obHgation  on  the  part  of  a  donee  of  a 
power  would  be  sufficient  to  vitiate  the  exercise  of  a  power,  and  I  put 
to  him  such  a  point  as  this,  than  which  I  can  conceive  no  stronger 
moral  obligation.  A  man  has  no  property  of  his  own,  but  has  a  daugh- 
ter who  is  going  to  marry.  He  says :  "I  cannot  make  you  any  pres- 
ent allowance,  or  give  you  any  present  fortune,  but  I  will  see  that  you 
are  provided  for  by  my  will."  He  has  nothing  but  a  power  of  ap- 
pointment by  will.  Can  it  be  said,  without  straining  to  an  excess,  which 
makes  it  almost  absurd,  the  doctrine  of  this  court,  that  a  will  executed 
under  those  circumstances  in  favor  of  that  daughter  or  her  husband 
would  not  be  a  good  execution  of  a  power?  To  say  so  would  be  to 
defeat  the  very  object  of  the  power.  No  doubt  it  is  in  the  power  of 
the  father  at  the  time  of  his  death  to  make  or  not  to  make  the  will, 
and  to  distribute  in  such  proportions  as  he  thinks  fit,  but  there  is  a 
moral  obligation  of  the  strongest  kind  to  make  a  provision  for  the 
daughter  in  consequence  of  the  circumstances  under  which  the  mar- 
riage takes  place.  Then  suppose  this  furtt^er  case.  Suppose  a  father 
is  surety  for  his  son ;  if  the  son  has  got  no  money,  the  father  will  be 
called  upon  to  pay:  but  can  it  be  said  that  an  appointment  to  the 
son  under  those  circumstances  is  bad?  The  result  indirectly  will  be 
that,  instead  of  the  father's  own  estate  paying  that  debt,  the  son  will 
pay  out  of  money  which  he  gets  from  the  appointment,  and,  as  has  been 
said  already  by  Lord  Justice  James,  and  as  was  said  by  Lord  Hath- 
erley,  one  really  must  not  strain  too  far  the  doctrine  of  this  court  in 
order  to  avoid  execution  of  powers  which  are  done  honestly  and  for 
the  benefit  of  the  objects  of  the  power  according  to  the  best  judgment 
of  the  donee,  without  any  indirect  motive  to  secure  a  benefit  to  him- 
self. Of  course  if  there  is  anything  of  that  sort — anything  corrupt — 
no  appointment  can  possibly  stand.  So,  if  there  is  any  attempt  to  do 
what  cannot  be  done  by  means  of  the  power,  that  is  bad.  In  the  pres- 
ent case,  by  the  mere  exercise  of  the  power  no  indefeasible  interest 
could  have  been  given  to  the  son  at  the  time,  and  it  may  be  said  that 
this  therefore  is  attempting  to  do  indirectly  what  cannot  be  done  di- 
rectly. But  there  i^  the  absolute  appointment  to  the  son  as  far  as  it 
can  be  made  absolute,  leaving  him  to  deal  with  it  as  he  thinks  fit  for 
his  benefit,  and  it  is  not  that  the  father  deals  with  it  by  way  of  rais- 
ing money,  or  deals  with  it  under  any  contract  or  engagement  that  he 
makes,  but  as  far  as  he  can,  leaving  it  by  will  to  the  son,  he  puts  the 
son  in  the  position  of  doing  what  the  son  thinks  most  for  his  interest 
and  what  the  father  does  not  think  for  his  disadvantage.  It  is  to  the 
appointee,  and  to  him  only,  that  the  father  looks,  so  as  to  enable  him, 
as  far  as  he  can,  having  regard  to  the  nature  of  the  power,  to  do  what 
is  most  for  his  benefit. 

I  have  dealt  with  the  case  without  reference  to  the  authorities,  but 
when  we  look  at  the  authorities,  it  is  clear  that  it  is  settled  that  such 
a  covenant  as  this  does  not  vitiate  an  appointment  made  in  accordance 


Ch.  2)  APPOINTMENTS    IN    FRAUD CONTRACTS    TO    APPOINT  323 

with  it.  We  have  the  decision  of  Coffin  v.  Cooper,  2  Dr.  &  Sm.  365,  be- 
fore the  Vice-Chancellor  Kindersley,  carefully  considered,  where, 
throwing  aside  what  would  be  pushing  the  doctrine  to  an  extreme,  he 
gave  effect  to  the  appointment,  and  held  it  not  to  be  bad.  We  have 
also  the  same  point  decided  in  the  Court  of  Appeal  in  the  case  of  Bul- 
teel  V.  Plummer,  Law  Rep.  6  Ch.  160.^ 

I  must  add  one  word  more  to  explain  why  I  hesitate  to  say  that  such 
a  bond  as  this  is  entirely  void.  It  has  been  held  that  under  certain  cir- 
cumstances such  a  bond,  or  one  very  like  it,  can  be  held  to  be  a  release 
of  the  power.  If  it  is  bad,  it  must  be  bad  in  toto,  and  I  am  not  satis- 
fied that  it  can  be  good  as  a  release  of  a  power  and  yet  bad  altogether 
as  a  covenant.  But  at  the  present  time  I  give  no  opinion  whether  this 
covenant  is  in  law  bad,  and  whether,  under  those  circumstances,  it 
could  be  enforced  against  the  assets,  if  there  were  any,  of  the  donee. 


In  re  BRADSHAW. 

BRADSHAW  v.  BRADSHAW. 

(Chancery  Division,  1902.    L.  R.  1  Cli.  436.) 

Adjourned  Summons. 

William  Bradshaw  by  his  will,  dated  January  22,  1853,  devised  and 
bequeathed  a  portion  of  his  residuary  real  and  personal  estate  to  a 
trustee  upon  trust  to  pay  the  yearly  rents  and  profits  thereof  to  his 
son  Arthur  Bradshaw  during  his  life,  and  after  his  decease  in  trust 
for  all  and  every  or  such  one  or  more  exclusively  of  the  other  or  oth- 
ers of  the  children  or  other  issue  of  his  said  son  Arthur  Bradshaw 
(such  other  issue  to  be  born  within  the  limits  allowed  by  law),  for 
such  estate  or  estates,  and  if  more  than  one  in  such  proportions  and 
with  such  limitations  over  for  the  benefit  of  the  said  children  or  other 
issue  or  some  or  one  of  them,  and  with  such  restrictions  and  in  all 
respects  in  such  manner  as  his  said  son  Arthur  Bradshaw  should  by 
his  will  or  any  testamentary  writing  appoint,  and  in  default  of  such 
appointment  in  trust  for  all  and  every  the  children  and  child  of  his 
said  son  Arthur  Bradshaw,  who  being  a  male  or  males  should  attain 

1  In  Bulteel  v.  Plummer,  L.  R.  6  Ch.  160,  a  testatrix,  having  power  to  ap- 
point by  will  a  certain  fund  amongst  all  and  every  of  her  children  and  their 
children,  covenanted  to  appoint  a  certain  sum  to  one  child.  She  then  by  her 
will  appointed  that  sum.  Tx)rd  Hatherley.  L.  C.,  in  considering  whether  this 
appointment  was  void,  said:  "But  I  think  it  would  be  a  very  forced  appli- 
cation of  the  doctrine  as  to  appointments  if  this  were  held  bad.  It  is  true 
that  there  is  something  like  an  improper  exercise  of  the  power,  as,  of  course, 
she  tries  to  exonerate  her  own  estate.  A  question  further  arises,  "whether 
this  was  a  good  covenant  on  which  damages  could  be  recovered,  as  to  which 
I  desire  to  say  nothing;  but  I  think  that  to  hold  such  an  appointment  bad 
as  a  device  would  be  to  strain  the  doctrine  as  to  impro]>er  appointments  too 
far.  The  testatrix  did  not  wish  to  get  any  benefit  for  herself,  and  I  think 
jthat  she  was  not  prevented  from  appointing  the  £2500." 


324  POWERS  (Part  3 

the  age  of  twenty-one  years,  and  who  being  a  female  or  females  should 
attain  that  age  or  marry,  equally  to  be  divided  between  such  children, 
if  more  than  one,  as  tenants  in  common,  their  respective  heirs,  execu- 
tors, administrators,  and  assigns  respectively,  and  if  there  should  be 
but  one  such  child,  then  the  whole  for  that  one,  his  or  her  heirs,  execu- 
tors, administrators,  and  assigns  respectively. 

William  Bradshaw  died  on  July  12,  1855,  and  his  will  was  proved  on 
September  26,  1855. 

Arthur  Bradshaw  was  twice  married.  By  his  first  marriage  he 
had  two  children,  Arthur  Evelyn  Bradshaw  and  jNIargaret  Beatrice 
Good.  By  his  second  marriage  had  two  children  ]\Ioe}-  Violet  Fran- 
ces Bradshaw  and  William  Pat  Arthur  Bradshaw,  who  were  both  in- 
fants. 

Previously  to  the  second  marriage  two  deeds  of  covenant  were  ex- 
ecuted by  Arthur  Bradshaw.  By  the  first  of  these  deeds,  dated  Feb- 
ruary 7,  1893,  and  made  between  himself  of  the  first  part,  Arthur 
Evelyn  Bradshaw  of  the  second  part,  Margaret  Beatrice  Good  of 
the  third  part,  and  William  Graham  Bradshaw  of  the  fourth  part,  he 
in  eftect  covenanted  to  appoint  to  his  son  and  daughter  not  less  than 
one-third  part  of  the  property  subject  to  the  power  of  appointment 
given  to  him  by  the  will  of  William  Bradshaw.  In  the  result  no  ques- 
tion arose  r.3  to  the  effect  of  this  covenant. 

By  the  second  of  these  deeds,  dated  February  8,  1893,  and  made 
between  Arthur  Bradshaw  of  the  first  part,  Alaud  Annette  Letitia 
Elizabeth,  his  then  intended  wife,  of  the  second  part,  and  Francis 
Cooper  Dumville  Smythe,  Dudley  Ferrars  Loftus,  and  William  Gra- 
ham Bradshaw  of  the  third  part  (being  the  settlement  made  on  Ar- 
thur Bradshaw's  second  marriage),  Arthur  Bradshaw  covenanted 
with  the  parties  of  the  third  part  that  if  the  said  intended  marriage 
should  take  place,  he  would,  in  exercise  of  the  power  reserved  to  him 
by  the  will  of  William  Bradshaw,  by  will  appoint  and  direct  that  if 
any  issue  of  the  said  marriage  should  survive  him,  Arthur  Bradshaw, 
a  part  or  share  of  the  several  trust  real  and  personal  estate  by  the 
will  of  William  Bradshaw  directed  to  be  held  in  trust  for  Arthur 
Bradshaw  and  his  children,  not  being  of  less  value  at  the  time  of  the 
decease  of  Arthur  Bradshaw  than  £6000,  should  from "  his  death  be 
held  by  the  trustees  or  trustee  for  the  time  being  of  the  wall  of  Wil- 
liam Bradshaw  upon  trust  for  the  child  or  children  or  issue  of  the  said 
marriage  (such  issue  to  be  born  within  twenty-one  years  from  the 
death  of  Arthur  Bradshaw)  in  such  shares  and  proportions  as  Arthur 
Bradshaw  should  appoint ;  and  Arthur  Bradshaw  further  covenanted 
with  the  parties  of  the  third  part  that,  in  case  there  should  be  issue 
pf  the  marriage  living  at  his  death,  he  would  not  exercise  the  power 
of  testamentary  appointment  given  to  him  by  the  will  of  William 
Bradshaw  over  the  trust  premises  thereby  settled  in  favour  of  his 
children  or  issue  by  any  other  marriage,  so  as  by  any  means  to  reduce 
the  part  or  share  of  the  same  trust  premises  which  he  had  thereby 


Ch.  2)    APPOINTMENTS  IN  FRAUD CONTRACTS  TO  APPOINT      325 

covenanted  to  appoint  in  favour  of  the  child  or  children  of  the  then 
intended  marriage  to  a  less  amount  than  the  sum  of  £6000.,  or  to 
postpone  the  vesting  of  that  part  or  share  beyond  the  period  of  the 
death  of  him,  Arthur  Bradshaw. 

Arthur  Bradshaw  by  his  will  dated  April  9,  1896,  made  before  the 
birth  of  his  youngest  child,  in  execution  of  the  power  of  appointment 
conferred  by  the  will  of  William  Bradshaw,  appointed  certain  free- 
holds to  Alargaret  Beatrice  Good  for  her  Hfe,  and  after  her  death  to 
her  children  "then  living" ;  but  if  no  child  should  attain  a  vested  in- 
terest, then  in  the  same  manner  as  the  remainder  of  the  property 
thereby  appointed.  The  testator  then  directed  and  appointed  that 
the  remaining  property  subject  to  the  power  of  appointment  and  all 
other  his  real  and  personal  estate  should  be  held  in  trust  as  to  three 
equal  fifth  parts  for  the  benefit  of  his  son  Arthur  Evelyn  Bradshaw 
as  thereinafter  declared,  and  as  to  the  remaining  two  equal  fifth  parts 
for  the  benefit  of  his  daughter  Moey  Violet  Frances  Bradshaw.  As 
to  the  three-fifths,  the  testator  declared  that  it  should  be  held  upon 
trust  for  A.  E.  Bradshaw  for  Hfe,  and  after  his  death  upon  certain 
trusts  in  favour  of  his  children  or  issue  "then  living,"  and  in  the  event 
of  his  son  leaving  no  child  who  should  live  to  attain  a  vested  interest, 
then  upon  the  trusts  declared  concerning  the  two-fifths.  As  to  the 
two-fifths  the  testator  directed  that  the  same  should  be  held  upon 
certain  trusts  for  the  benefit  of  his  daughter  M.  V.  F.  Bradshaw  dur- 
ing her  life,  and  after  her  death  upon  certain  trusts  in  favour  of 
her  children  "then  living,"  and  in  the  event  of  his  said  daughter 
leaving  no  child  who  should  attain  a  vested  interest,  then  upon  the 
trusts  declared  concerning  the  three-fifths.  The  testator  appointed 
his  son  A.  E.  Bradshaw  and  another  executors  of  his  will. 

The  testator  Arthur  Bradshaw  died  on  March  22,  1900,  and  his 
will  was  proved  by  A.  E.  Bradshaw  alone  on  June  23,  1900. 

It  was  not  disputed  that  the  appointments  made  by  the  will  of 
Arthur  Bradshaw  subsequent  to  the  life  interests  of  Mrs.  Good,  A.  E. 
Bradshaw,  and  M.  V.  F.  Bradshaw  were  respectively  void  for  remote- 
ness. The  gifts  in  favour  of  A.  E.  Bradshaw  and  M.  V.  F.  Bradshaw 
and  their  children  or  issue  extended  to  and  comprised  property  of  the 
testator  Arthur  Bradshaw  in  addition  to  the  property  settled  by  the 
will  of  William  Bradshaw ;  and  accordingly  the  question  arose  wheth- 
er A.  E.  Bradshaw  and  M.  V.  F.  Bradshaw  were  bound  to  elect  be- 
tween the  interests  they  took  in  Arthur  Bradshaw's  property  and 
their  interest  in  default  of  appointment  under  the  will  of  William 
Bradshaw. 

Arthur  Evelyn  Bradshaw  had  four  children,  all  of  whom  were  in- 
fants.    Mrs.  Good  had  one  child,  who  was  an  infant. 

This  summons  was  taken  out  by  Arthur  Evelyn  Bradshaw,  as  plain- 
tiflf  against  the  trustees  of  the  indentures  of  February  7  and  8,  1893, 
Maud  A.  L.  E.  Bradshaw,  Margaret  B.  Good,  Moey  Violet  F.  Brad- 


326  POWERS  (Part  3 

shaw,  William  Pat  Arthur  Bradshaw,  the  four  infant  children  of  the 
plaintifif,  and  the  infant  child  of  Mrs.  Good  as  defendants,  for  the 
determination  of  numerous  questions  arising  in  the  administration  of 
the  estate  of  Arthur  Bradshaw,  and  in  particular  (a)  whether  any  case 
of  election  was  raised  by  the  will  of  Arthur  Bradshaw,  and  (b)  for  the 
direction  of  the  Court  as  to  whether  any  and  what  provision  ought  to 
be  made  out  of  the  estate  of  Arthur  Bradshaw  for  the  purpose  of  sat- 
isfying the  covenants  contained  in  the  indenture  of  February  8,  1893, 
in  case  the  Court  should  be  of  opinion  that  such  covenants  remained 
unsatisfied. 

The  question  of  election  was  first  argued.  [The  opinion  on  the 
question  of  election  is  omitted.] 

KekEwich,  J.  A  general  power  of  appointment  is  broadly  distin- 
guishable from  property,  but  in  its  practical  results,  and  in  what  I 
may  call  its  market  value,  it  is  really  equivalent  to  property.  The 
donee  may  deal  with  it  as  he  pleases.  He  may  not  only  release  it, 
but  may  sell  it,  or  bind  himself  to  exercise  it  in  any  way  he  pleases. 
This  is  equally  true  whether  the  power  is  to  be  exercised  by  deed,  by 
deed  or  will,  or  by  will  only.  In  the  last  case,  of  course,  there  is 
more  practical  risk,  because  a  man  cannot  make  a  will  which  will 
operate  previously  to  his  death.  But  no  legal  difficulty  arises,  and 
cases  frequently  occur  where  a  man  has  a  general  power  of  appoint- 
ment and  deals  with  it,  either  by  covenant  or  otherwise,  as  property — 
that  is  to  say,  he  treats  the  subject  of  the  power  as  property  over 
which  he  has  control.  But  when  the  power  is  a  special  one  you 
have  a  different  subject  altogether.  What  is  a  special  power?  The 
most  familiar  instance  (for  there  are  many  others)  is  a  power  of  ap- 
pointment amongst  children.  Such  a  power  as  commonly  given 
to  parents  is  intended  not  to  make  a  provision  for  the  children,  for 
that  is  done  by  the  gift  in  default  of  appointment,  but  to  confide  to  the 
parents  the  determination  in  what  shares  and  proportions  the  children 
shall  take — whether,  for  example,  if  women,  they  shall  take  for  their 
separate  use  with  or  without  restraint  on  anticipation,  or,  if  men, 
shall  take  life  interests  determinable  on  bankruptcy.  It  is  a  discre- 
tion vested  in  the  parent  for  determining  what  the  particular  provi- 
sion shall  be.  That,  as  it  seems  to  me,  is  nearly  akin  to  a  trust,  and 
might  well  be  described  as  a  trust,  but  at  all  events  it  is  a  fiduciary 
power.  Is  it  right  that  a  man  having  that  fiduciary  power  should 
bind  himself  to  deal  with  it  in  any  particular  manner?  If  it  were 
by  deed  or  by  deed  or  will,  the  case  might  be  more  difificult ;  but 
where  it  is  aj^p^f^r  tn  appoini-  by  will,  it  seems_to^  me  to  be  clear  that 
the  intention  of  the  person  creating  sucha  power,'~wlTether  by  settle- 
ment or  by  will,  is  that  the~donee  ot  the  power  shall  keep  the  exercise 
or  It  under"  his  control  until  the  time  of  his  death^^  ATwiiTbeing  rev- 
ocable maybe  altered  from  time  to  time,  and  it  is  common  knowl- 
edge that  the  exercise  of  powers  is  continually  altered  with  reference 


Ch.  2)  AI'POINTMENTS    IN    FRAUD CONTRACTS    TO    APrOINT  327 

to  the  different  events  of  family  life.  It  seems  to  me  that  to  say  that 
a  person  having  a  power  to  appointjjy^all  may  bmcLJiimself  to-ex- 
ercise'Tt  in  a^particular  way  is  to  defeat  the  object  nf  the  creation  of 
the  po\yei\_and  to  put  the  donee  in  a  position  to  do  the  very  thing 
which  the  settlement  must  be  taken  to  say  he  shall  not  do.  There  is 
no  rear  autlTority  upon  the  point,  and  therefore  I  have  stated  what  I 
conceive  to  be  the  principle.  But  there  are  certain  guides.  The  first 
case  bearing  on  it  is  the  case  of  Bulteel  v.  Plummer,  L.  R.  6  Ch.  160, 
where  there  had  been  a  covenant  to  exercise  a  special  power  which 
was  aptly  described  as  a  power  of  distribution,  and  it  was  held  that, 
notwithstanding  that  the  appointment  was  made  in  pursuance  of  a 
covenant  to  appoint,  the  power  might  be  well  exercised.  Lord  Hath- 
erly,  Id.  163,  said  this :  "A  question  further  arises,  \yhether  this  was 
a  good  covenant  on  which  damages  could  be  recovered,  as  to  which 
I  desire  to  say  nothing ;  but  I  think  that  to  hold  such  an  appointment 
bad  as  a  device  would  be  to  strain  the  doctrine  as  to  improper  ap- 
pointments too  far."  All  we  have,  therefore,  is  that  the  point  oc- 
curred to  a  learned  judge  of  great  eminence  and  experience,  and  that 
he  held  that  it  was  not  necessary  for  him  to  dispose  of  it.  James,  L. 
J.,  was  a.  party  to  the  judgment,  but  I  do  not  see  that  he  noticed  this 
point.  But  it  had  come  before  him  in  Thacker  v.  Key,  L.  R.  8  Eq. 
408,  and  there  he  expressed  a  distinct  opinion.  He  says  (Id.  414) : 
"Now,  if  it  had  been  necessary  to  determine  that  point,  I  think  I 
should  have  had  very  little  difficulty  in  holding  such  a  cove- 
nant to  be  illegal  and  void.  The  testator  is  the  donee  of  a  testamen- 
tary power,  which  was  to  be  exercised  by  him  as  a  trustee.  It  was  a 
fiduciary  power  in  him  to  be  exercised  by  his  will,  and  by  his  will 
only ;  so  that,  up  to  the  last  moment  of  his  life,  he  was  to  have  the 
power  of  dealing  with  the  fund  as  he  should  think  it  his  duty  to  deal 
with  it,  having  regard  to  the  then  wants,  position,  merits,  and  neces- 
sities of  his  children."  James,  V.  C,  there  stated  in  cogent  language 
what  I  have  attempted  to  say.  The  only  other  case  is  Palmer  v. 
Locke,  15  Ch.  D.  294,  before  the  Court  of  Appeal,  and  there  Brett,  L. 
J.,  made  a  more  direct  statement,  of  his  opinion,  though  again  it  was 
not  necessary  to  decide  the  point  judicially.  He  says,  15  Ch.  D. 
301 :  "It  seems  to  me  that  although  there  is  no  consideration  given 
for  the  covenant  it  is  not  a  binding  covenant,  because  it  would  be 
contrary  to  public  policy  to  allow  a  person  in  the  position  of  a  trus- 
tee to  enter  into  such  a  covenant  so  as  to  bind  himself."  That  is  in 
support  of  the  view  that  the  covenant  is  wholly  void,  and  that  no 
remedy  is  available  for  the  breach  of  it.  Cotton,  L.  J.,  did  not  con- 
cur, but  he  did  not  differ ;  he  merely  reserved  his  opmion.  It  is  to 
be  remarked  that  James,  L.  J.,  was  a  party  to  the  decision,  and  that 
he  said  nothing  upon  that  view  of  the  case.  The  explanation  may  be 
that  he  had  already  had  the  point  before  him  and  that  delivering  the 
first  judgment  he  did  not  notice  a  point  which  did  not  directly  arise. 


328  POWERS  (Part  3 

It  seems  to  me  that  I  have  a  substantial  amount  of  opuiion  or  incHna- 
tion  of  opinion  in  favour  of  the  view  I  take,  and  that  the  safe  and 
right  thing-  is  to  say  that  a  covenant  of  this  kind  is  bad  and  cannot 
be  sued  on. 

""HrT'Lawrence  makes  two  remarks  which  ought  to  be  noticed. 
First,  he  says  that  this  is  a  family  arrangement.  The  Court  has  gone 
far  in  upholding  family  arrangements,  and  the  doctrine  goes  so  far 
back  that  I  think  it  would  be  difficult  to  find  when  it  was  first  intro- 
duced. But  Air.  Lawrence  has  not  cited  any  decision  in  which  the 
doctrine  has  been  applied  to  a  case  such  as  the  present  one.  Then 
again,  he  called  my  attention  to  the  case  of  Coffin  v.  Cooper,  2  Dr.  & 
Sm.  365.  It  is  quite  true  that  it  is  possible  to  get  rid  of  a  good  deal 
of  the  doctrine  of  fiduciary  power.  It  has  been  held,  and  usefully 
held,  that  a  power  of  this  kind  can  be  released.  A  man  can  say  in  a 
proper,  solemn  manner,  "I  will  not  exercise  the  power  at  all,"  with 
the  result  that  he  does  then  and  there  confer  upon  every  one  of  his 
children  an  equal  portion  of  the  settled  property.  He  does  in  effect 
covenant  that  the  power  shall  not  be  exercised.  But  the  answer  is 
that  the  release  of  a  power  depends  on  a  foundation  of  its  own.  There 
was  a  time  when  it  was  a  question  how  far  a  power  of  this  kind  can 
be  released.  The  question  has  now  been  decided,  and  the  decision  is 
found  convenient,  but  I  do  not  think  it  ought  to  be  carried  further. 
It  would  be  carrying  it  a  long  way  to  say  that  because  a  man  may 
releas5[^aIpoWer^ therefore^ he  may  covenant  to  exercise  iMn  a  par- 
ticular  way.  *  *  *  [The  balance  of  the  opinion  relating  to  the  sub- 
ject  of  costs  is  omitted.] 


In  re  PARKIN. 

HILL  V.  SCHWARZ. 
(Chancery  Division,  1892.     L.  R.  3  Ch.  510.) 

Adjourned  Summons. 

Hugh  Parkin,  by  his  will  dated  the  13th  of  December,  1860,  be- 
queathed all  the  21/2  per  cent,  stock  which  at  the  time  of  his  death  he 
should  hold  or  be  possessed  of  to  trustees  upon  trust  for  his  daughter 
Mary  Creighton  (afterwards  Mrs.  Tetens),  during  her  life  without 
power  of  anticipation,  and  after  her  death,  as  to  the  sum  of  £5000 
part  thereof,  upon  trust  for  such  persons  or  purposes  as  Mrs.  Tetens 
should,  notwithstanding  her  then  present  or  any  future  coverture, 
by  will  appoint,  and  in  default  of,  and  subject  to,  any  such  appoint- 
ment, upon  trust  for  the  benefit  of  two  others  of  his  daughters  and 
their  issue  as  therein  mentioned. 

The  testator  died  on  the  16th  of  ]\Iarch,  1871,  possessed  of  £7000 
21/2  per  cent,  stock. 

By  an  indenture  dated  the  20th  of  December,  1867,  being  the  set- 
tlement made  on  the  marriage  of  Mary  Creighton  with  the  Defendant, 


Ch.  2)         APPOINTMENTS    IN    FRAUD CONTRACTS    TO    APPOINT  329 

Emil  Tetens,  after  a  recital  that  by  an  indenture  of  settlement  made 
in  1848  Mrs.  Tetens  then  stood  possessed  of  certain  powers  of  ap- 
pointment over  divers  sums  of  money,  stocks,  funds,  and  securities, 
and  the  annual  produce  thereof  respectively,  subject  to  a  life  interest 
therein  of  her  father,  Hugh  Parkin,  it  was  witnessed  that  Mrs.  Tetens, 
by  virtue  and  in  execution  of  the  power  for  that  purpose  given  by  the 
recited  indenture  of  settlement  and  of  all  other  powers  and  authori- 
ties enabling  her  in  that  behalf,  appointed  certain  funds  to  the  trus- 
tees of  the  settlement  of  1867,  upon  trusts  (after  the  intended  mar- 
riage) for  Mrs.  Tetens  during  her  life,  for  her  separate  use  without 
power  of  anticipation,  and  after  her  death  out  of  the  income  to  pay 
an  annuity  of  ilOO  to  Jules  Creighton,  her  son  by  her  first  marriage, 
and  subject  thereto  to  pay  the  income  to  Mr.  Tetens  during  his  life, 
determinable  as  therein  mentioned,  and  subject  thereto  upon  trust 
for  the  child  or  children  of  ]\Irs.  Tetens  (including  her  said  son  by  her 
first  marriage)  who  should  be  living  at  the  death  of  the  survivor  of 
Mr.  and  Mrs.  Tetens,  and  for  the  issue  then  living  of  any  and  every 
of  I\Irs.  Tetens'  then  deceased  child  or  children  (including  her  said 
son  by  her  first  marriage)  who,  being  males,  should  attain  twenty- 
one,  or,  being  females,  should  attain  that  age  or  marry,  to  take,  if 
more  than  one,  in  equal  shares  as  tenants  in  common  per  stirpes ; 
and  in  the  case  of  the  decease  of  Mrs.  Tetens  without  leaving  any 
such  child  or  issue,  who  should  live  to  attain  a  vested  interest  in  the 
premises,  then  upon  trusts  for  a  sister  of  Mrs.  Tetens  and  her  issue. 

The  settlement  contained  the  following  covenants,  upon  which  the 
question  in  this  case  arose: 

The  said  Emil  Tetens  and  Mary  Creighton  severally  covenanted 
that  all  the  estate,  property,  and  efifects  whatsoever  which  the  said 
Mary  Creighton,  or  the  said  E.  Tetens  in  her  right,  should  at  any  time 
during  the  coverture  become  possessed  of  or  entitled  to  at  law  or  in 
equity  in  any  manner  whatsoever  should  be  settled ;  and  also  that 
any  other  powers  or  power  of  appointment  over  any  estate,  propcrtv, 
and  effects  whatsoever  of  which  she  might  then  or  at  any  time  there- 
after during  such  coverture  be  the  donee  under  any  settlement,  will, 
or  other  instrument  whatsoever,  should,  if  executed  by  her,  be  execut- 
ed only  in  favour  of  the  trustees  or  trustee  for  the  time  being,  of  the 
settlement,  in  order  that  all  such  estate,  property,  and  effects  should 
be  effectually  vested  in  and  be  held  by  them  or  him  upon  the  trusts 
declared  by  the  settlement. 

There  was  no  issue  of  the  marriage  between  ]\Ir.  and  ^Irs.  Tetens. 

Mrs.  Tetens,  by  her  will  dated  the  29th  of  March,  1889,  appointed 
her  husband  and  Mr.  Frank  ]\Iilner  Russell  her  executors,  and,  after 
bequeathing  ilOOto  Mr.  Russell  and  reciting  the  power  conferred  on 
her  by  the  will  of  her  father  of  appointing  by  will  £5000  2i4  per  cent, 
stock,  she  directed  and  appointed  that  from  and  after  her  death  the 
trustees  of  her  father's  will  should  stand  possessed  of  the  said  sum  of 
£5000    upon    the    trusts    following,    viz.,    as    to  the    clear    sum    of 


330  POWERS  (Part  3 

£1000,  part  thereof  in  trust  for  her  nephew  Hugh  Campbell  Rowley, 
to  whom  she  bequeathed  the  same  accordingly  free  of  legacy  duty; 
and  as  to  the  residue  thereof  (subject  to  the  payment  thereout  of  her 
just  debts,  funeral  and  testamentary  expenses,  and  the  legacy  be- 
queathed to  H.  C.  Rowley  and  the  legacy  duty  thereon)  in  trust  for 
her  husband  absolutely. 

She  made  a  codicil  dated  the  5th  of  December,  1889,  by  which  she 
revoked  the  appointment  and  bequest  in  her  said  will  contained  of 
ilOOO  to  Hugh  Campbell  Rowley,  and  directed  and  appointed  that 
trom  and  after  her  death  the  trustees  of  her  father's  will  should  out 
of  the  sum  of  £5000  21/0  per  cent,  stock  referred  to  in  her  will,  raise 
and  pay  certain  legacies  amounting  to  £700  and,  subject  to  the  afore- 
said legacies,  should  stand  possessed  of  the  residue  of  the  said  stock 
upon  the  trusts  by  her  said  will  declared  with  reference  to  the  residue 
of  the  same  after  payment  to  the  said  H.  C.  Rowley  of  the  legacy 
thereby  revoked. 

Mrs.  Tetens  died  on  the  19th  of  January,  1892,  leaving  Mr.  Tetens 
and  her  son  by  her  first  marriage  her  surviving.  Her  will  and  codicil 
were  proved  on  the  8th  of  March,  1892,  by  both  executors. 

Questions  having  arisen  as  to  the  effect  of  the  covenants  on  the 
part  of  Mr.  and  Mrs.  Tetens  contained  in  the  settlement  of  the  20th 
of  September,  1867,  and  the  testamentary  dispositions  made  by  Mrs, 
Tetens,  an  originating  summons  was  taken  out  by  the  trustees  of 
Hugh  Parkin's  will  for  the  purpose  of  obtaining  the  decision  of  the 
Court  upon  them.  This  summons  was  intituled  in  the  matter  of  the 
estate  of  Hugh  Parkin,  in  the  matter  of  the  trusts  of  the  settlement 
of  the  20th  of  December,  1867,  and  in  the  matter  of  the  trusts  of 
the  will  of  Mrs.  Tetens.  The  questions  for  the  determination  of  the 
Court  were  (inter  alia) — 

(1)  Whether  the  £5000  2i/^  per  cent,  stock  ought  to  be  paid  to  the 
trustees  of  the  settlement  or  to  the  executors  of  Mrs.  Tetens'  will; 
(2)  Whether  under  the  terms"  of  the  settlement  Mrs.  Tetens  was  under 
any  and  what  Hability  to  exercise  the  power  of  appointment  conferred 
upon  her  by  the  will  of  the  testator  in  favour  of  the  trustees  of  the 
settlement;  (3)  Whether  by  reason  of  the  exercise  of  the  power  of 
Mrs.  Tetens,  as  in  her  will  and  codicil  mentioned,  her  estate  had  be- 
come liable  to  the  trustees  of  the  settlement,  and  to  what  extent ;  (4) 
What  interest  the  Defendant  Emil  Tetens  was  entitled  to  under  the  ap- 
pointment contained  in  the  will  and  codicil  of  Mrs.  Tetens;  (5) 
Whether  the  Defendant  Emil  Tetens  was  liable  in  respect  of  such  in- 
terest or  otherwise  to  the  trustees  of  the  settlement  to  any  and  what 
extent. 

The  summons  came  on  for  hearing  on  the  19th  of  May,  1892. 

Stirling,  J.  [stated  the  facts  and  continued  :] 

It  was  contended,  on  behalf  of  Jules  Creighton,  that  inasmuch  as 
Mrs.  Tetens  had  made  a  will  executing  the  power  contained  in  the 
will  of  her  father,  the  property  which  she  had  power  so  to  dispose  of 


Ch.  2)    APPOINTMENTS  IN  FRAUD CONTRACTS  TO  APPOINT      331 

was,  as  against  volunteers  claiming  under  her,  bound  by  the  covenant 
contained  in  her  settlement.  It  was  not  disputed  that  if  Mrs.  Tetens 
had  not  made  a  will,  the  £5000  stock  must  have  gone  to  the  persons 
entitled  under  Hugh  Parkin's  will  in  default  of  appointment  by  her; 
but  it  was  said  that  the  persons  claiming  under  her  will,  being  mere 
volunteers,  could  not  set  up  a  title  to  the  appointed  property  against 
persons  claiming  it  for  valuable  consideration ;  and  in  support  of  this 
contention  the  following  cases,  amongst  others,  were  cited :  Goylmer 
V.  Paddiston,  2  Vent.  353 ;  s.  c.  sub  nom.  Goilmere  v.  Battison,  1 
Vern.  48 ;   and  Fortescue  v.  Hennah,  19  Ves.  67. 

Unquestionably  these  cases  shew  that  the  Court  has  gone  a  long 
way  in  enforcing,  by  way  of  specific  performance,  contracts  to  leave 
property  by  will ;  but  not  one  of  them  is  a  case  of  a  contract  to  leave 
by  will  on  the  part  of  one  who  was  merely  donee  of  a  testamentary 
power  of  appointment.  In  my  judgment,  specific  performance  ought 
not  to  be  decreed  in  such  a  case. 

''It  is  not,  I  apprehend,  to  be  doubted,"  says  Rolt,  L.  J.,  in  Cooper 
V.  Martin,  Law  Rep.  3  Ch.  47,  58,  "that  equity  *  *  *  will  never 
uphold  an  act  which  will  defeat  what  the  person  creating  the  power 
has  declared,  by  expression  or  necessary  implication,  to  be  a  material 
part  of  his  intention."  In  Reid  v.  Shergold,  10  Ves.  370,  380,  Lord 
Eldon,  speaking  of  a  claim  by  a  purchaser  from  the  donee  of  a  testa- 
mentary power  to  the  assistance  of  the  Court,  says :  "The  testator 
did  not  mean,  that  she  should  so  execute  her  power.  He  intended, 
that  she  should  give  by  will,  or  not  at  all ;  and  it  is  impossible  to  hold, 
that  the  execution  of  an  instrument,  or  deed,  which,  if  it  availed  to 
any  purpose,  must  avail  to  the  destruction  of  that  power  the  testator 
meant  to  remain  capable  of  execution  to  the  moment  of  her  death,  can 
be  considered  in  equity  an  attempt  in  or  towards  the  execution  of  the 
power." 

These  remarks  were  made  in  a  case  in  which  the  contest  was  be- 
tween the  purchaser  and  a  person  claiming  in  default  of  appointment. 
I  think  that  in  principle  they  apply  where  the  question  arises  between 
persons  claiming  under  a  contract  for  value  on  the  one  hand,  and 
those  claiming  under  the  will  on  the  other.  I  think,  therefore,  that 
this  contention  fails. ^ 

1  have  next  to  consider  what  are  the  legal  rights  of  the  trustees  of 
the  settlement  in  respects  of  the  covenants.  Can  they  recover  for 
breach  of  the  covenant  on  the  part  of  the  wife  contained  in  the  settle- 
ment, and  if  so  what  amount  of  damages,  and  against  whom?  First, 
has  Mrs.  Teten?  broken  her  covenant?  She  covenanted  that  "any 
other  power  or  powers  of  appointment  over  any  estate,  property,  or 
effects  whatsoever,  over  which  the  said  Mary  Creighton  may  now,  or 

2  See,  also,  Wilks  v.  Burns,  60  Md.  64. 

Nor  will  equity  aid  as  a  defective  appointment  tlie  covenant  to  appoint 
by  will  to  a  particular  individual,  where  the  donee  has  died  without  exer- 
cising a  testamentary  power.     Tost,  p.  .''>rM,  note  2. 


332  POWERS  (Part  3 

at  any  time  hereafter,  during  such  coverture  as  aforesaid,  be  the  donee 
under  any  settlement,  will,  or  other  instrument  whatsoever,  shall,  if 
executed  by  her,  be  executed  only  in  favour  of"  the  trustees  of  the 
settlement.  During  the  coverture  she  became  the  donee  of  a  general 
testamentary  power  of  appointment,  which  she  might  have  exercised 
in  favour  of  the  trustees.  The  power  was  executed  by  her,  but  not 
in  favour  of  the  trustees.  It  seems  to  me  that  this  constituted  a, 
breach  of  the  covenant.  Next,  what  is  the  amount  of  damages  to  be 
recovered  in  respect  of  such  breach?  It  is  said  that  the  damages 
ought  to  be  nominal  only  because  the  trustees  are  in  no  worse  posi- 
tion than  if  the  wife  had  declined  to  exercise  the  power  (which,  no 
doubt,  she  was  at  Hberty  to  do),  with  the  result  that  the  fund  had 
gone  as  in  default  of  appointment.  It  seems  to  me,  however,  that  as 
the  wife  might  have  exercised  the  power  in  favour  of  the  trustees, 
and  she  did  exercise  it,  but  not  in  their  favour,  the  covenantees  ought 
to  be  placed,  as  nearly  as  may  be,  in  the  same  position  as  if  the  covenant 
had  been  duly  performed ;  and,  consequently,  that  the  trustees  are  en- 
titled to  recover  by  way  of  damages  the  value  of  the  stock  which  wouTd" 
have  come  to  their  hands  if  the  appointment  actuallymade  had  been 
in  their  favour. 

TTien  comes  the  question,  Who  is  liable  in  respect  of  the  breach? 
*     *     *     [The  court  then  held  that  the  legal  personal  representatives_ 
of  the  wife  were  liable  on  the_  wife's  covenant  lo  the  extent_of  assets 
iS<*^      coming  to  €»fch«i  hands.     The  court  abstained  from  expressing  any 
opinion  as  t^l:he  etfect  of  the  husband's  personal  covenant.] 


BEYFUS  V.  LAWLEY. 

(House  of  Lords,  1903.     L.  R.  App.  Cas.  411.) 
See  post,  p.  361,  for  a  report  of  the  case. 

On  Noxexci-usive  Powers  axd  Illusory  Appointments — See  Wilson  v. 
Pi^gott,  2  Ves.  Jr.  351  (1794):  Young  v.  Waterpark.  13  Sim.  199  (1S42) ; 
Rieketts  v.  Loftus,  4  Y.  &  C.  519  (1S41) ;  Gainsford  v.  Dunn,  L.  R.  17  Eq.  405 
(1874). 

Gray,  Powers  in  Trust.  25  H.  L.  R.  26:  "But  the  rule  as  to  illusory  ap- 
pointments is  unique  in  tlie  la\A-.  Other  rules  of  doubtful  character  have 
found  defenders  or  apologists,  but  no  one  has  had  a  good  word  for  this.  It 
has  l^een  condemned  in  the  most  unmeasured  terms  by  judge  after  judge — ■ 
by  Sir  Richard  Pepper  Arden  (afterwards  Lord  Alvanley),  M.  R.,  in  Spencer 
V.  Spencer,  5  Ves.  302  (ISOO),  and  Kemp  v.  Kemp,  Id.  849  (1801) ;  by  Sir 
William  Grant,  M.  R.,  in  Butcher  v.  Butcher,  9  Ves.  382  (1804);  and  by 
Lord  Eldon,  C,  in  Bax  v.  Whitbread,  16  A'es.  15  (1809),  and  Butcher  v. 
Butcher,  1  Ves.  &  B.  79,  94,  90  (1812)." 

In  this  country  the  doctrine  of  illusory  appointments  has  been  repudiated, 
without  the  assistance  of  legislation,  in  Graeff  and  Wife  v.  De  Turk,  44  Pa. 
527 ;    Hawthorn  v.  Ulrich,  207  111.  430,  69  N.  E.  885. 

St.  11  Geo.  IV  and  1  Wm.  IV,  c.  46  (IS^O),  provided  that  no  appointment 
could  be  disregarded  because  it  was  illusory ;  i.  e.,  because  of  the  smallness  of 
the  share  appointed. 

St.  37-38  Vict.  c.  37  (1874),  made  every  power  exclusive,  unless  the  donor  ex- 
pressly provided  otherwise. 


Ch.  3)  SURVIVAL   OP   POWERS  333 


CHAPTER  III 
SURVIVAL  OF  POWERS 


ST.  21  HEX.  VIII,  c.  4:  *  *  *  For  remedy  whereof,  be  it  en- 
acted, ordained,  and  established  by  the  authority  of  this  present 
Parliament,  That  where  part  of  the  executors  named  in  any  such 
testament  of  any  such  person  so  making  or  declaring  any  such  will 
of  any  lands,  tenements,  or  other  hereditaments  to  be  sold  by  his 
executors,  after  the  death  of  any  such  testator,  do  refuse  to  take 
upon  him  or  them  the  administration  and  charge  of  the  same  tes- 
tament and  last  will  wherein  they  be  so  named  to  be  executors,  and 
the  residue  of  the  same  executors  do  accept  and  take  upon  them  the 
cure  and  charge  of  the  same  testament  and  last  will ;  that  then  all 
bargains  and  sales  of  such  lands,  tenements,  or  other  hereditaments, 
so  willed  to  be  sold  by  the  executors  of  any  such  testator,  as  well 
heretofore  made,  as  hereafter  to  be  made  by  him  or  them  only  of  the 
said  executors  that  so  doth  accept,  or  that  heretofore  hath  accepted 
and  taken  upon  him  or  them  any  such  cure  or  charge  of  administra- 
tion of  any  such  will  or  testament,  shall  be  as  good  and  as  effectual  in 
tlie  law,  as  if  all  the  residue  of  the  same  executors  named  in  the  said 
testament,  so  refusing  the  administration  of  the  same  testament,  had 
joined  with  him  or  them  in  the  making  of  the  bargain  and  sale  of 
such  lands,  tenements,  or  other  hereditaments  so  willed  to  be  sold  by 
the  executors  of  any  such  testator,  which  heretofore  hath  made  or 
declared,  or  that  hereafter  shall  make  or  declare  any  such  will,  of  any 
such  lands,  tenements,  or  other  hereditaments  after  his  decease,  to 
be  sold  by  his  executors. 

II.  Provided  alway,  That  this  Act  shall  not  extend  to  give  power 
or  authority  to  any  executor  or  executors  at  any  time  hereafter  to 
bargain  or  put  to  sale  any  lands,  tenements,  or  hereditaments,  by  vir- 
tue and  authority  of  any  will  or  testament  heretofore  made,  otherwise 
than  they  might  do  by  the  course  of  the  common  law  afore  the  making 
this  Act.^ 

1  Woemer,  American  Law  of  Administration,  §  341:  "The  American  stat- 
utes mostly  extend  the  power  to  the  survivor  or  survivors  of  several  ex- 
ecutors who  have  qualified,  of  whom  one  or  more  may  die,  resign,  or  be  re- 
moved, as  well  as  to  one  or  more  who  may  qualify  of  a  larger  number  to 
whom  the  power  is  given,  of  whom  one  or  more  may  refuse  to  act,  and  to 
the  administrator  with  the  will  annexed." 


334  POWEES  (Parts 

ATWATERS  v.  BIRT. 

(Court  of  Queen's  Bench,  43^4  Eliz.,  1603.    2  Cro.  Eliz.  856.) 

Ejectione  firmse.  Upon  a  special  verdict  the  case  was,  one  Robert 
Stanton,  seised  in  fee  of  the  land  in  question,  infeoffed  thereof  Thom- 
as Molyns  and  three  others,  to  the  use  of  himself  for  life,  and  after  to 
the  use  of  Richard  his  second  son  in  tail,  remainder  to  George  his 
eldest  son  in  tail,  remainder  to  his  right  heirs ;  with  a  proviso,  "that 
if  he  paid  twelve  pence  at  any  time  to  the  said  Thomas  Molyns,  and 
the  three  others,  and  good  and  sufficient  cause  was  shewed  unto  themi 
by  the  said  Robert  Stanton  the  father  of  the  abuses  by  Richard  the 
son,  and  that  so  by  the  said  Thomas  Molyns  and  three  others  (re- 
citing their  names),  shall  be  thought  convenient,  that  then  the  afore- 
said uses  shall  cease,  and  then  to  be  to  the  use  of  him  and  his  heirs." 
One  of  the  four  feoffees  died ;  Robert  Stanton  paid  the  twelve  pence 
to  the  other  three,  and  shewed  cause  of  abuse  by  Richard  his  son, 
which  was  approved  by  the  three.  He  then  declares  by  a  new  deed, 
that  the  said  Thomas  Molyns  and  the  other  two  feoffees,  for  good 
consideration  expressed  in  the  deed,  should  stand  seised  of  the  said 
land,  to  the  use  of  himself  for  life,  and  after  to  new  uses,  etc.  and, 
whether  these  uses  should  take  effect  or  not?     was  the  question. 

First,  whether  this  be  a  good  revocation  of  the  first  uses,  one  of  the 
feoffees  being  dead? 

Secondly,  admitting  that  they  are  revoked,  whether  it  be  a  good     i 
new  limitation  of  the  last  uses  ? 

As  to  the  first,  all  the  Court  resolved,  that  it  was  not  a  good  revo- 
cation ;  for  it  is  but  an  authority  which  is  given  to  revoke,  and  it  is 
to  be  done  by  the  assent  of  the  four ;  and  any  of  them  being  dead,  the 
authority  is  determined,  and  shall  not  survive.  And  for  this  reason, 
as  Popham  said,  the  common  law  before  the  statute  of  21  Hen.  8,  c. 
4,  was,  that  if  one  devised  his  land  to  four  to  sell,  and  one  of  them 
dies,  the  survivors,  because  they  have  an  interest,  may  sell ;  but  if  he 
had  devised  that  three  should  sell  his  land,  and  one  of  them  dies,  the 
survivors,  because  they  have  but  a  mere  authority,  cannot  sell.'  Vide 
49  Edw.  3,  pi.  16;  2  Eliz.  Dyer,  177,  189,  217. 

Secondly,  admitting  that  the  first  uses  are  well  revoked ;  yet  they 
held,  that  this  second  indenture  is  not  a  sufficient  limitation  of  the 
new  uses,  and  raising  of  them :  for  although  the  consideration  there- 
in be  sufficient,  viz.  bipod  and  affection,  yet  he  doth  not  covenant 
to  raise  them  out  of  his  own  possession ;  but  that  his  feoffees  shall  be 
seised,  &c.  and  none  other  but  them  shall  stand  seised ;  and  he  hath 
not  any  feoffees,  and  therefore  no  use  can  rise.  And  although  it  were 
said,  that  it  shall  be  expounded  as  a  will,  according  to  the  intent  of 

2  See,  also,  Montefiore  v.  Browne,  7  H.  L.  C.  241 ;  Hawkins  v.  Kemp,  3 
East,  410. 


Ch.  3)  SURVIVAL   OF    POWERS  335 

the  parties,  forasmuch  as  he  hath  not  feofifees,  that  he  himself  shall 
be  seised,  &c.  it  shall  not  be  so  in  construction  of  deeds ;  and  so  there 
did  not  any  uses  arise,  and  therefore  the  lessor  of  the  plaintiff  hath 
not  any  title.    Whereupon  it  was  adjudged  for  the  defendant. 


HOUELL  V.  BARNES. 

(Court  of  King's  Bench,  1G34.     Cro.  Car.  382.) 

Upon  a  suit  in  chancery,  a  case  was  agreed  by  the  counsel  of  both 
parties  and  referred  to  Jones,  Berkli^y,  and  myself.  Justices,  to  con- 
sider and  certify  our  opinions. 

The  case  was,  One  Francis  Barnes,  seised  of  land  in  fee,  deviseth  it 
to  his  wife  for  her  life,  and  afterwards  orders  the  same  to  be  sold  by 
his  executors  hereunder  named,  and  the  moneys  thereof  coming  to 
be  divided  amongst  his  nephews ;  and  of  the  said  will  made  William 
Clerk  and  Robert  Chesly  his  executors.  William  Clerk  dies ;  the 
wife  is  yet  alive. 

Two  questions  were  made : 

First,  whether  the  said  William  Clerk  and  Robert  Chesly  had  an 
interest  by  this  devise,  or  but  an  authority  ? 

Secondly,  whether  the  surviving  executor  hath  any  authority  to 
sell? 

We  all  resolved,  that  they  have  not  any  interest  by  this  devise,  but 
only  an  authority,  and  that  thfe  surviving  executor,  notwithstanding 
the  death  of  his  companion,  may  sell ;  and  so  we  certified  our  opin- 
ions. But  whether  he  might  sell  the  reversion  immediately,  or  ought 
to  stay  until  the  death  of  the  wife,  was  a  doubt.  Vide  30  Hen.  8, 
Br.  "Devise,"  31;  9  Edw.  3,  pi.  16;  Co.  Lit.  112,  113,  136,  181;  8 
Ass.  26.3 

3 Accord:  Brassey  v.  Chalmers,  4  De  G.,  M.  &  G.  528,  536,  reversing  16 
Beav.  223,  231;  Forbes  v.  Peacocli,  11  M.  &  W.  630;  Peter  v.  Beverly,  10 
Pet.  (U.  S.)  532,  5(>4,  9  L.  Ed.  522;  Osgood  v.  Franklin.  2  Johns.  Ch.  (N.  Y.) 
1,  7  Am.  Dec.  513;  Id.,  14  Johns.  (N.  Y.)  527;  Wardwell  v.  McDowell,  31  111. 
364;  Warden  v.  Richards,  11  Gray  (Mass.)  277;  Muldrow's  Heirs  v.  Fox's 
Heirs,  2  Dana  (Kv.)  78 ;  Berrien  v.  Beri'ien,  4  N.  J.  E(i.  37 ;  White  v.  Taylor, 
1  Yeates  (Pa.)  422;  BredenUurg  v.  Bardin,  36  S.  C.  197,  15  S.  E.  372;  Dick  v. 
Harhy,  48  S.  C.  516.  26  S.  E.  900;  Fitzgerald  v.  Standish,  102  Tenn.  383,  52 
S.  W.  294;  Robertson  v.  Gaines,  2  Humph.  (Tenn.)  367;  Davis  v.  Christian, 
15  Grat.  (Va.)  11,  38 ;   Wolfe  v.  Hines,  93  Ga.  329,  20  S.  E.  322. 

Where  the  power  is  conferred  upon  executors  to  sell,  not,  however,  to  pay 
debts  and  legacies,  but  to  hold  the  proceeds  for  the  benefit  of  those  entitled 
to  the  land,  in  place  of  the  land,  it  has  been  held  that  the  power  does-  not 
survive.  Clinfelter  v.  Ayres,  16  111.  329 ;  Wooldridge's  Heirs  v.  Watkins,  3 
Bibb  (Ky.)  349 ;  Shelton  v.  Homer,  5  Mete.  (Mass.)  462 ;  Chambers  v.  Tulane, 
9  N.  J.  Eq.  146,  156;  Clay  v.  Hart,  7  Dana  (Ky.)  7;  Tarver  v.  Haines,  55  Ala. 
503 ;  Robinson  v.  Allison,  74  Ala.  254.  Ei^pecially  where  the  language  creat- 
ing the  power  reposes  a  personal  confidence  and  discretion  in  the  executors. 
Tarver  v.  Haines,  55  Ala.  503;   Chambers  v.  Tulane,  9  N.  J.  Eq.  146;   Clay  v. 


336  POWERS  (Part  3 

YATES  V.  COMPTON. 
(Court  of  Chancery,  1725.     2  P.  Wins.  308.) 

A.  devised  that  his  executors  should  sell  his  land  in  Dale,  and  with 
the  money  arising  by  that  sale  and  the  surplus  of  his  personal  estate, 
should  purchase  an  annuity  of  £100  for  the  life  of  Jane  Styles,  and 
should  allow  to  her  so  much  thereof  as  would  maintain  her  and  her 
children,  and  gave  £30  to  each  child  to  be  raised  out  of  the  said  an- 
nuity and  the  personal  estate  he  should  die  possessed  of,  and  the  over- 
plus of  his  personal  estate  he  gave  to  Jane  Styles,  and  made  B.  and  C. 
executors. 

The  testator  died,  and  Jane  Styles,  the  intended  annuitant  died 
within  three  months  after  him ;  B.  and  C.  the  executors  renouncing, 
administration  with  the  will  annexed  was  granted  to  the  plaintifif  who 
was  also  the  administrator  of  Jane  Styles  (the  intended  annuitant) 
and  with  the  children  of  Jane  brought  this  bill  against  the  heir  of  the 
testator,  to  compel  him  to  join  in  a  sale  of  these  lands  in  Dale. 

For  the  defendant  it  was  objected,  that  there  wanted  parties,  in 
regard  the  executors  ought  to  have  been  made  defendants,  for  not- 
withstanding they  had  renounced  yet  the  power  of  sale  continued  in 
them,  and  was  altogether  collateral  to  their  executorship. 

But  there  being  only  a  power  and  no  estate  devised  to  the  execu- 
tors, this  objection  was  over-ruled,  (tamen  Q.) 

The  plaintiff's  counsel  then  proceeding  upon  the  merits,  it  was  con 
tended  on  behalf  of  the  heir,  that  as  nothing  but  a  bare  power  of  salf; 
was  given  to  the  executors,  so  such  power  was  for  a  particular  pur- 
pose, to  buy  an  annuity  for  Jane  Styles,  and  forasmuch  as  that  pur- 
pose could  not  now  be  answered,  Jane  Styles  being  dead,  there  ough< 
not  to  be  any  sale. 

That  this  was  within  the  reason  of  the  case  where  one  devises  land.i 
for  the  raising  portions  for  daughters,  and  the  daughters  die  before 
thev  are  marriageable,  the  lands  ought  not  to  be  sold,  but  go  to  the 
heir  at  law ;  so  where  lands  are  devised  for  payment  of  debts,  and 
the  testator  himself  lives  to  pay  his  debts,  in  such  case  there  shall  be 
no  sale ;  and  here  it  was  the  same  as  if  the  intended  annuitant  had 
died  in  the  life  of  the  testator,  in  which  case  there  should  have  been 
no  sale,  and  by  the  same  reason  there  ought  to  be  no  sale  now. 

That  neither  Jane  Styles  or  her  children  would  be  any  sufferers  by 
this  construction,  since  if  there  had  been  a  sale  of  the  lands,  and  out 
of  the  money  arising  thereby  an  annuity  had  been  purchased  for  Jane 
Styles,  the  same  had  determined  by  her  death ;  and  the  children  could 
be  no  sufferers,  because  they  were  to  have  their  maintenance  only  out 

Hart,  7  Dana  (Ky.)  7;  Robinson  v.  Allison,  74  Ala.  254.  In  the  following 
cases,  however,  it  was  held  that  the  power  did  survive:  Farrar  v.  McCue,  89 
K  X.  139,  144 ;    Dick  v.  Ilarby,  48  S.  C.  51G,  518,  2G  S.  E.  900. 


Ch.  3)  SURVIVAL   OF   POWERS  337 

of  the  said  annuity,  which  would  now  have  been  at  an  end  had  it  been 
bought. 

That  out  of  a  very  large  estate  of  the  testator,  this  farm  in  ques- 
tion, which  was  not  above  £20  per  annum,  was  all  that  was  left  for  the 
heir,  and  if  any  act  of  chance  or  providence  should  have  thrown  any 
pittance  upon  the  heir,  it  would  be  hard  for  the  Court  to  interpose  to 
the  prejudice  of  him  who  is  the  favourite  of  all  Courts  both  of  Law 
and  Equity. 

But  by  Lord  Chancellor  [King].  The  intention  of  the  will  was 
to  give  away  all  from  the  heir,  to  turn  this  land  in  question  into  per- 
sonal estate,  and  this  must  be  taken  as  it  was  at  the  death  of  the  tes- 
tator, and  ought  not  to  be  altered  by  any  subsequent  accident. 

Then  it  was  insisted,  that  the  estate  in  question  descended  to  the 
heir  at  law,  for  which  reason  he  ought  to  have  the  rents  till  the  sale. 

But  THE  Court  denied  this,  it  being  by  the  will  changed  into  per- 
sonal estate ;  and  said  that  if  the  executors  had  sold  the  land  within 
three  months  after  the  testator's  death,  and  before  the  death  of  Jane 
Styles  the  intended  annuitant,  then  (probably)  the  executor  of  Jane 
Styles,  should  on  her  death  have  had  the  money,  or  (perhaps)  she 
might  in  her  life  time  have  come  into  equity,  and  have  prayed  that  at 
least  part  of  the  money  should  have  been  kept  for  the  children,  and 
not  invested  in  the  annuity ;  nor  ought  the  delay  of  the  executors  in 
not  selling  the  land  in  question  within  the  said  three  months  to  hurt 
Jane  Styles  the  intended  annuitant,  or  her  children.  So  decreed  the 
land  to  be  sold,*  and  the  money  arising  by  the  sale  as  personal  estate 
to  be  paid  to  the  plaintiff,  he  paying  the  children's  legacies.^ 

But  the  heir  at  law  was  ordered  his  costs." 

*  "And  the  heir  to  join  in  the  sale."    Reg.  Lib.  B.  172.").  fol.  242. 

5  Co.  Lit.  ll.^a.  Hargraves'  Note :  "But  whether  Lord  Coke's  notion  of  the 
power  not  surviving,  or  the  opposite  one,  most  conforms  to  strictness  of  law, 
is  not  now  of  any  great  importance;  as  such  a  power,  though  extinct  at 
law,  would  certainly  be  enforced  in  equity.  This  has  long  been  the  prac- 
tice of  our  courts  of  equity ;  these  rightly  deeming  the  pui*pose  for  which 
the  testator  directs  the  money  arising  from  the  sale  to  be  applied,  to  the 
substantial  part  of  the  devise,  and  the  persons  named  to  execute  the  power 
of  selling  to  l>e  mere  trustees ;  which  brings  the  case  within  the  general  rule 
of  ecpiity,  that  a  trust  shall  never  fail  of  execution  for  want  of  a  trustee, 
and  that  if  one  is  wanting  the  court  shall  execute  the  office.  The  relief  is 
administered  by  considering  the  land,  in  whatever  person  vested,  as  bound 
by  the  trust,  and  compelling  the  heir,  or  other  person  having  the  legal  es- 
tate, to  perform  it.  There  are  many  printed  precedents  of  thus  executing 
not  only  powers  actually  extinct  at  law,  or  supposed  to  be  so,  but  also  such 
as,  in  point  of  law.  either  for  want  of  the  will's  naming  by  whom  they 
should  be  executed,  or  because  those  named  had  died  before  the  testator,  nev- 
er could  exist  or  take  effect.  Some  of  these  precedents  are  as  early  as  the  reign 
of  Charles  the  first.  See  Locton  and  Locton,  2  Freem.  1.36,  and  1  Cha.  Cas. 
179.  Garfoot  and  Garfoot,  1  Cha.  Cas.  35.  Gwilliam  and  Kowel,  Ilardr.  204. 
Pitt  and  Pelham,  2  Freem.  134.    1  Cha.  Rep.  283.  and  1  Cha.  Cas.  176.    T.  Jo. 

G  Though  by  the  Regist(>r's  book  the  decree  appears  to  have  been  as  here 
stated,  yet  it  is  not  mentioned  in  what  right  the  Court  took  the  plaintiff  to 
bo  entitled. — Rep. 

4  Kales  Prop. — 22 


338  POWERS  (Part  3 

LANE  V.  DEBENHAM. 

(Court  of  Chancery,  1853.     11  Hare,  ISS.) 

Daniel  Foster,  by  his  will,  dated  in  1843,  gave  and  devised  unto  J. 
E.  Lane  and  E.  Powell,  their  executors  and  administrators,  his  free- 
hold house  and  premises,  known  as  the  Georg-e  Inn,  and  the  appurte- 
nances, a  piece  of  freehold  meadow  land  called  Holywell,  two  free- 
hold cottag-es  situated  in  Spicer-street,  and  a  plot  of  ground  at  the 
corner  of  Dagnal-lane,  all  in  Saint  Albans ;  and  also  all  or  any  sum 
or  sums  of  money  which  might  be  due  or  coming  to  him  on  the  se- 
curity of  any  bill  or  bills,  note  or  notes  of  hand  or  other  memoran- 
dums, a  schedule  or  list  of  which  was  therewith  enclosed,  all  book  or 
other  contract  debts,  "and  all  other  his  (my)  real  and  personal  estate 
and  effects  whatsoever  and  wheresoever,"  and  declared  the  trusts  as 
follows :  "That  the  sum  of  £2000  shall,  as  soon  as  convenient  after 
my  decease,  be  raised  out  of  my  said  estates  by  sale  or  otherwise,  at 
the  discretion  of  my  said  trustees,  and  that  the  said  sum  of  £2000  shall 
be  invested  in  some  good  and  safe  security  in  the  names  of  my  said 
trustees,  and  the  interest  and  dividends  arising  therefrom  shall  be 
appropriated  to  the  maintenance,  support,  and  education  of  my  daugh- 
ter Sarah  Ann,  until  she  shall  attain  the  age  of  twenty-one  years,  after 
which  the  said  interest  or  dividends  shall  be  duly  paid  to  my  said 
daughter  half  yearly  for  her  separate  use,"  for  her  life,  or  until  the 
trusts  thereof  particularly  created  were  otherwise  determined.  The 
testator  then  directed  that  the  residue  of  his  personal  and  real  estate 
and  effects  should  be  invested  or  secured  at  the  discretion  of  his  trus- 
tees, and  the  rents,  issues,  and  profits  paid  over  to  his  wife  for  her 
life,  subject  to  certain  legacies  to  legatees  therein  named,  to  be  paid 

25.  1  Lev.  304.  See  also  Max.  of  Eq.  57,  and  Vin.  Abr.  Devise,  Q.  e.  and  S. 
e.  Nor  do  the  courts  of  equity  appear  ever  to  have  confined  this  relief,  as 
they  certainly  do  many  kinds  of  aid,  to  persons  of  particular  and  favoured 
descriptions,  such  as  wife,  children,  or  creditors ;  for  though  in  some  of  the 
old  cases,  the  persons  relieved  were  of  one  or  other  of  these  descriptions,  yet 
in  others  nearly  of  the  same  time  the  parties  are  not  stated  to  have  fallen 
within  either  of  them ;  and  we  have  not  heard  of  any  case,  in  which  relief 
has  been  refused  on  that  account.  See  Locton  and  Locton  already  cited,  and 
the  case  of  Tenant  and  Browne  cited  in  1  Cha.  Cas.  ISO.  Tlie  reason  of  not 
favouring  particular  persons  in  this  instance  will  api^ear  evident,  when  it  is 
considered  that  testamentary  powers  to  sell  are  deemed  to  be  in  the  nature 
of  trusts,  and  trusts  are  executed  in  equity  for  all  persons  indiscriminately." 

See  the  following  cases  in  support  of  the  same  rule:  Tainter  v.  Clark,  13 
Mete.  (Mass.)  220,  230 ;  Greenough  and  Wife  v.  Welles,  10  Cush.  (Mass.)  571, 
578,  579;    Compton  v.  McMahan,  19  Mo.  App.  494,  510. 

A  power  in  executors  does  not  usually  survive,  so  that  it  may  be  exercised 
by  an  administrator  with  the  will  annexed.  Conklin  v.  Egerton's  Adm'r,  21 
Wend.  (N.  Y.)  430;  Wills  v.  Cowper  &  Parker,  2  Ohio,  124-132;  In  re  Clay 
and  Tetley,  16  Ch.  Div.  3-7. 

See,  however,  the  following  cases,  where  the  power  seems  to  have  been  ex- 
ercisable by  such  an  administrator :  Putnam  v.  Story,  132  Mass.  205.  212 ; 
Mott  V.  Ackerman,  92  N.  Y.  539-541 ;  Wilcoxon,  Adm'r,  v.  Reese,  63  Md.  542, 
546. 


Ch.  3)  SURVIVAL   OF   POWERS  339 

at  their  respective  ages  of  twenty-one.  And  the  testator  directed 
that,  at  the  decease  of  his  wife,  all  such  rents,  issues,  and  profits 
should  thenceforth  be  paid  to  his  daughter,  her  executors,  adminis- 
trators, or  assigns ;  and  in  case  his  daughter  should  die  leaving  law- 
ful issue,  then  he  directed  that  all  the  said  real  and  personal  estate  and 
efifects  should  become  the  absolute  property  of  such  issue ;  and  in 
case  his  daughter  should  die  before  his  wife,  and  leave  no  issue,  he 
directed  that  all  his  said  real  and  personal  estate  should  be  divided 
between  certain  nephews  and  nieces  of  himself  and  his  wife  therein 
named.  By  the  usual  trustee  clauses,  the  testator  declared,  that  his 
said  trustee  and  trustees  of  that  his  will  should  be  charged  and 
chargeable  only  with  such  moneys  as  they  should  actually  receive  by 
virtue  of  the  trusts  thereby  reposed  in  them,  «S:c. ;  and  that  it  should 
be  lawful  for  his  said  trustees  respectively,  by  and  out  of  the  moneys 
which  should  come  to  their  or  his  hands,  to  retain  or  allow  to  each 
other  all  costs,  &c. ;  but  there  was  no  clause  declaring  that  the  re- 
ceipts of  the  trustees  or  trustee  should  be  an  indemnity  to  purchasers 
of  the  testator's  estate  for  the  moneys  therein  expressed  to  be  re- 
ceived. The  testator  thereby  appointed  his  wife  executrix,  and  Lane 
and  Powell  trustees  and  executors  of  his  will ;  and  he  died  in  1845. 
Lane  and  Powell  and  the  widow  proved  the  will,  and  the  two  former 
accepted  and  acted  in  the  trusts  of  the  devise.  Powell  died  in  1851, 
the  £2000  not  having  been  raised. 

Lane,  for  the  purpose  of  raising  the  £2000,  caused  certain  of  the 
devised  premises  to  be  offered  for  sale  by  public  auction  on  the  19th 
May,  1852.  The  ninth  condition  of  sale  was  as  follows : — The  whole 
of  the  property  is  sold  by  the  vendor  under  the  trusts  of  the  will  of 
Mr.  Daniel  Foster,  deceased,  the  produce  of  which  is  to  be  invested 
upon  the  trusts  of  such  will,  and  the  purchaser  shall  be  satisfied  with 
the  investment  by  the  vendor,  or,  in  case  of  his  death,  by  his  personal 
representatives,  of  the  purchase-money  for  each  lot  (after  deducting 
the  costs  incident  to  the  sale  of  the  property)  within  twenty-one  days 
after  the  receipt  of  such  purchase-money,  in  the  name  of  the  vendor 
or  his  personal  representatives,  in  such  of  the  public  funds  as  he  or 
they  may  elect ;  and  he  or  they  will,  if  required  by  any  purchaser,  sign 
a  declaration,  that  such  investment  is  made  on  the  trusts  of  the  will 
of  the  said  Daniel  Foster,  every  such  declaration  to  be  prepared  and 
executed  at  the  expense  of  every  purchaser  requiring  the  same ;  and 
the  respective  purchasers  are  hereby  excluded  from  making  any  ol>- 
jection  to  the  title  on  account  of  the  omission  from  the  said  will  of  a 
clause  authorizing  his  trustees  or  the  vendor  to  give  discharges  for 
the  purchase-money  of  the  property  to  be  sold  under  the  trusts  of  the 
will. 

The  defendant  G.  Debenham  became,  at  the  sale,  the  purchaser  of 
Lot  1.  He  subsequently  objected  to  the  title,  on  the  ground  that  the 
trust  in  the  will  for  raising  the  sum  of  £2000  could  not  be  exercised  bv 


340  POWERS  (Part  3 

the  plaintiff  as  the  surviving  trustee.  This  question  the  parties  agreed 
to  submit  to  the  court  in  the  form  of  a  special  case. 

Vice-Chancellor  [Sir  William  Page  Wood].  The  devise  in 
this  case  to  Lane  and  Powell,  their  executors  and  administrators,  of 
the  specific  freehold  estate  and  other  property,  "and  all  other  his  real 
and  personal  estate  and  effects  whatsoever  and  wheresoever,"  upon 
the  trusts  subsequently  declared,  is  a  devise  which  clearly  passes  the 
whole  fee  to  the  trustees,  although  the  words  executors  and  adminis- 
trators are  inapt  words  as  to  the  realty.  The  question  as  to  the  mode 
of  raising  the  £2000  will  not  arise,  unless  the  legatee  for  whose  bene- 
fit it  was  intended  is  alive,  a  fact  which  is  not  stated  in  the  special  case. 
Looking  at  the  question,  which,  it  appears  by  a  letter  stated  in  the 
case,  was  asked  by  the  purchaser,  whether  that  person  were  alive, — 
to  the  fact  that  the  abstract  was  then  sent,  and  that  the  objection 
taken  was  that  the  discretion  as  to  sale  cannot  be  exercised  by  one 
trustee  alone,  and  that  the  sum  might  be  raised  otherwise,  I  think  I 
may  assume  the  fact  of  the  existence  of  the  party  interested  at  the 
time  of  the  sale.  It  will  be  proper  that  the  declaration  of  the  court 
should  be  prefaced  by  reciting  that  it  proceeds  upon  that  assumption. 

The  main  cjuestion  is,  whether  or  not,  there  being  a  direct  trust  to 
raise  £2000  by  sale  or  otherwise,^ — and  thus  a  discretion  to  be  exercis- 
ed, and  one  of  the  trustees  being  dead, — it  is  thereby  rendered  impos- 
sible for  the  surviving  trustee  to  execute  this  trust  without  the  direc- 
tion of  the  court.  The  money,  it  is  clear,  must  be  raised;  can  the 
surviving  trustee  raise  it  by  means  of  a  sale,  or  is  it  necessary  to 
come  to  the  court  in  order  that  the  court  may  exercise  its  discretion 
whether  it  is  to  be  by  sale,  by  mortgage,  or  by  some  other  appropria- 
tion? 

Air.  Walker  has  argued,  that,  whether  the  case  be  one  of  a  power 
or  a  trust,  if  it  be  confided  to  two  persons,  or  if  it  be  a  mere  trust  for 
sale,  if  it  be  said  that  the  sale  is  to  be  made  by  two  persons,  a  sur- 
vivor of  the  two  can  never  execute  it.  The  argument  proceeds,  as  it 
appears  to  me,  upon  an  entire  disregard  of  the  distinction  between 
powers  and  trusts.  No  doubt,  where  it  is  a  naked  power  given  to 
two  persons,  that  will  not  survive  to  one  of  them,  unless  there  be  ex- 
press words,  or  a  necessary  implication  upon  the  whole  will,  showing 
it  to  be  the  intention  that  it  should  do  so.  But  the  ground  of  that 
rule  is,  that,  where  the  testator  has  disposed  of  his  property  in  one 
direction,  subject  to  a  power  in  two  or  more  persons  enabling  them 
to  divert  it  in  another  direction,  the  property  will  go  as  the  testator 
has  first  directed,  unless  the  persons  to  whom  he  has  given  the  power 
of  controlling  the  disposition  exercise  that  power.  He,  therefore,  to 
whom  the  testator  has  given  the  property,  subject  to  having  it  taken 
from  him  by  the  exercise  of  the  power,  has  a  right  to  say  that  it  must 
be  exercised  modo  et  forma.  It  is  therefore  a  rule  of  law,  that,  in  all 
cases  of  powers,  the  previous  estate  is  not  to  be  defeated  unless  the 


Ch.  3)  -'  SURVIVAL    OF    POWERS  341 

power  be  exercised  in  the  manner  specifically  directed.  When,  on  the 
other  hand,  a  testator  gives  his  property,  not  to  one  party  subject  to 
a  power  in  others,  but  to  trustees,  upon  special  trusts,  with  a  direc- 
tion to  carry  his  purposes  into  effect,  it  is  the  duty  of  the  trustees  to 
execute  the  trust ;  thus,  if  the  direction  be  to  raise  a  certain  sum  of 
money,  the  estate  is  thereby  at  once  charged,  and  it  becomes  the  duty 
of  the  trustees  to  raise  the  charge  so  created.  If  an  estate  be  devised 
to  A.  and  B.  upon  trust  to  sell,  and  thereby  raise  such  a  sum,  it  is  I 
think  a  novel  argument,  that,  after  A.'s  death,  B.  cannot  sell  the  es- 
tate and  execute  the  trust. 

In  Nicloson  v.  Wordsworth,  2  Swanst.  365,  and  Crewe  v.  Dicken,  4 
Ves.  97,  and  that  class  of  cases,  the  question  was  a  different  one, — 
whether,  under  a  devise  to  several  persons,  upon  trust  to  sell, — where 
the  sale  takes  place  in  the  lifetime  of  one  who  has  released  or  dis- 
claimed the  trust,  the  other  trustees,  in  whom  the  estate  is  vested  by 
such  release,  can  execute  the  trust.  In  Crewe  v.  Dicken,  there  was  a 
gift  to  A.  and  B.,  in  trust  that  they  and  the  survivor  of  them  should 
sell.  One  disclaimed,  so  that  in  fact  the  sale  was  not  made  by  the 
survivor,  and  the  question  was  whether  the  other  trustee  could  sell. 
Mr.  Walker  said,  that  that  class  of  cases  turned  on  the  construction 
given  to  the  word  survivor ;  but  it  was  not  only  that — it  was  a  ques- 
tion whether,  in  an  event  not  contemplated  by  the  testator,  a  person 
who  was  acting  in  the  trusts,  and  in  whom  the  devised  estate  was 
vested,  could  make  a  good  title.  In  Nicloson  v.  Wordsworth,  Lord 
Eldon  said,  he  had  not  much  doubt,  and  that  in  his  own  case,  if  he 
were  himself  the  purchaser,  he  would  not  reject  the  title  on  that 
ground  alone.  Where  there  is  a  power  given  to  A.  and  B.,  and  no 
estate  given  to  them,  if  A.  dies  or  renounces,  B.  alone  cannot  make 
a  title.  Lord  St.  Leonards  thus  states  the  rule : — "It  is  regularly  true 
at  common  law,  that  a  naked  authority  given  to  several  cannot  sur- 
vive" (1  Sugd.  Pow.  143);  and  he  adds,  "the  same  doctrine  applies 
to  powers  operating  under  the  Statute  of  Uses ;"  and  he  cites  the 
case  from  Dyer,  "where  cestui  que  use  in  fee,  before  the  Statute  of 
Uses,  willed  that  his  feoffees  A.,  B.,  and  C.  should  suffer  his  wife  to 
take  the  profits  for  her  life,  and  that  after  her  decease  the  premises 
should  be  sold  by  his  said  feoffees, — one  of  the  feoffees  died,  and  then 
the  wife  died ;"  and  it  was  ruled  that  the  survivors  could  not  sell. 
But  if  an  estate  be  given  to  two  persons,  upon  trust  to  sell,  there  is  no 
doubt  the  survivor  may  sell.  The  case  is  then  within  the  rule  put  bv 
Lord  Coke,  and  which  I  am  not  aware  has  ever  been  disputed,  that 
"as  the  estate,  so  the  trust  shall  survive." 

The  case  of  Cooke  v.  Crawford,  13  Sim.  91,  and  others,  which  were 
relied  upon,  turned  upon  the  question,  whether  the  trustee  could  dele- 
gate his  authority.  The  parties  to  whom  the  estate  had  been  devised 
for  sale  had  attempted  to  transfer  or  devise  it  to  others ;  and  it  was 
held,  that  the  parties  thus  irregularly  constituted  trustees  of  the  estate 


342  POWERS  (Part  3 

could  not  exercise  the  powers,  or  sell  or  give  discharges  to  the  pur- 
chasers. 

The  case  before  the  Master  of  the  Rolls,  :M'Donald  v.  Walker,  14 
Beav.  556,  was  of  the  same  description.  The  estate  and  powers  were 
given  to  two  trustees  and  the  survivor  of  them ;  and  the  question 
was,  whether  the  survivor  could  hand  over  to  a  devisee  of  the  estate 
the  performance  of  the  powers  also ;  and  the  Master  of  the  Rolls 
held  that  to  be  so  doubtful,  that  he  could  not  force  it  upon  an  unwill- 
ing purchaser.  Here  the  estate  has  not  been  transferred  or  devised 
to  other  persons,  but  remains  in  the  survivor  of  the  trustees,  in  whom 
the  testator  placed  it. 

The  real  difficulty,  if  it  be  one,  is  in  the  second  point ;  upon  which 
the  argument  for  the  defendant  proceeded, — the  trust  to  raise  "by  sale 
or  otherwise."  I  do  not  think  the  words,  "at  their  discretion,"  are  im- 
portant. It  is  said,  that  the  sum  might  be  raised  by  mortgage  or  ap- 
propriation ;  and  that  this  is  a  species  of  authority  which  the  court 
will  not  permit  one  person  to  exercise,  where  it  was  given  originally 
to  two.  If,  it  was  asked,  the  authority  follows  the  estate, — when,  on 
the  decease  of  the  trustee,  the  real  and  personal  estate  is  separated, — 
with  which  estate  does  it  go  ?  Is  the  heir  or  the  executor  to  have  it  ? 
I  do  not  say  that  a  difficulty  might  not  arise  upon  this  point,  but  it 
has  not  arisen.  There  might  be  some  question  whether  the  authority 
had  come  to  an  end  if  the  real  and  personal  estate  had  fallen  into 
different  hands ;  but  one  trustee  still  alive ;  and  I  apprehend,  that 
where  you  have  an  absolute  trust  to  raise  out  of  a  common  fund  a 
sum  of  money,  either  by  sale  or  otherwise,  in  clear  terms,  as  in  this 
case,  there  is  no  such  difficulty  as  has  been  suggested.  The  sum  be- 
ing necessary  to  be  raised,  it  is  clear,  that,  if  the  case  were  brought 
here,  the  court  would  direct  the  surviving  trustee  to  raise  the  money, 
he  having  the  whole  legal  estate,  and  being  subject  to  the  obligation 
to  execute  the  trust.  He  has  the  same  power  as  was  given  to  the  two 
trustees, — a  power  arising  from  the  combined  circumstances  of  the 
absolute  duty  which  is  imposed  upon  him,  accompanied  by  an  estate 
which  enables  him  to  perform  it. 

The  trustee  has,  in  this  case,  executed  the  duty  which  the  trust  has 
cast  upon  him ;  and  I  am  asked  by  the  defendant  to  say,  that,  in  doing 
so,  he  has  committed  a  breach  of  trust,  because  he  has  proceeded  to 
raise  the  money  after  the  death  of  his  co-trustee.  If  I  were  to  lay 
down  such  a  rule,  where  is  it  to  stop?  It  would  follow,  that,  when- 
ever an  estate  is  vested  in  two  or  more  trustees  to  raise  a  sum  by 
sale  or  mortgage,  or  even  to  sell  by  auction  or  private  contract,  the 
parties  must,  after  the  death  of  one  of  the  trustees,  come  to  this  court 
for  directions  before  they  can  execute  the  trust.  The  court  has  not 
better  means  of  exercising  the  option  than  the  party  against  whom 
the  objection  is  taken,  nor  are  its  means  so  good.    I  think,  as  I  have 


Ch.  3)  SURVIVAL   OF   POWERS  343 

observed,  that  the  fallacy  of  the  argument  on  behalf  of  the  defendant 
is  in  mixing  together  the  rules  applicable  to  bare  powers  or  authori- 
ties, and  those  applying  to  interests. '^ 

'Accord:  In  re  Bacon  [1907]  1  Cli.  475;  Faulkner  v.  Lowe,  2  Exch.  581, 
594 ;  Hind  v.  Poole,  1  Kay  &  J.  883 ;  Eaton  v.  Smith,  2  Beav.  2:3(5 ;  Reid  v. 
Reid,  8  Jur.  499;  Attorney  (ieneral  v.  Gleg,  1  Atk.  o5G;  In  re  Cookes'  Con- 
tract, 4  Ch.  Div.  454;  Golder  v.  Bressler,  105  111.  419;  Gray  v.  Lynch,  8 
Gill  (Md.)  403;  Gutman  v.  Buckler,  69  Md.  7,  13  Atl.  635;  Bradford  v. 
Monks,  132  Mass.  405;  Putnam  v.  Fisher,  30  Me.  523;  Gaines  v.  Fender,  82 
Mo.  497,  506. 

It  has  been  held  that  it  made  no  difference  that  the  instrument  creating 
the  trust  provided  for  the  filling  of  vacancies  among  the  trustees  and  that 
the  new  trustees  were  given  all  the  powers  of  the  old  trustees.  In  such  case, 
therefore,  the  sole  surviving  trustee  could  exercise  the  power  of  sale  though 
the  vacancies  had  not  been  filled.  Belmont  v.  O'Brien.  12  N.  Y.  394;  Parker 
v.  Sears,  117  Mass.  513.     But  see  O'Brien  v.  Battle,  98  Ga.  766,  25  S.  E.  780. 

If  the  iK>wer  in  trustees  is  to  appoint  in  a  manner  different  from  that  pre- 
scribed by  the  settlor,  it  has  been  held  that  the  power,  though  given,  pro- 
ceeds generally,  was  exercisable  only  by  those  named,  so  that  upon  the  death 
of  one,  the  power  could  not  be  exercised.  See  Cole  v.  Wade,  16  Ves.  Jr.  27 ; 
Hadlev  v.  Hadley,  147  Ind.  423,  46  N.  E.  823 ;  Dillard  v.  Dillard,  97  Va.  434, 
34  S.  E.  60. 

But  in  In  re  Smith  [1904]  1  Ch.  139,  where  the  power  was  given  to  my 
"said  trustees"  to  sell  and  apply  the  principal  for  the  wife,  who  took  a  life 
estate,  it  was  held  that  the  power  could  be  exercised  by  any  trustee  for  the 
time  being. 

In  Pennsylvania  Co.  v.  Bauerle,  143  111.  459,  33  N.  E.  166,  where  the  power 
of  sale  was  given  to  four  trustees,  all  of  whom  qualified  in  Pennsylvania,  the 
domicile  of  the  testator,  but  one  of  whom  was  a  Pennsylvania  corporation 
which  did  not  comply  with  the  laws  of  Illinois,  and  therefore  could  not  act 
in  the  sale  of  Illinois  land  with  the  other  trustees,  it  was  held  that  the 
power  could  not  be  exercised  by  the  three  trustees  who  were  competent  to 
act  in  the  sale  of  Illinois  real  estate,  and  that  specific  performance  would 
not  be  decreed  for  the  trustees  against  a  purchaser. 


34i  POWERS  (Part  3 


CHAPTER  IV 

POWERS  IN  TRUST  AND  GIFTS  IMPLIED  IN  DEFAULT 
OF  APPOINTMENT       . 


HARDING  V.  GLYN. 

(Court  of  Chancery,  1739.    1  Atk.  4G9.) 

Nicholas  Harding  in  1701  made  his  will,  and  thereby  gave  "To  Eliza- 
beth his  wife  allliis  estate,  leases,  and  interest  in  his  house  in  Hatton 
Garden,  ancTall  the  goods,  furniture,  and  chattels  therein  at  the  time 
of  his  death,  and  also  all  his  plate,  linen,  jewels,  and  other  wearing 
apparel,  but  did  desire  her  at  or  before  her  death,  to  give  such  leases, 
house,  furniture,  p^oods  and  chattels,  plate  and  jewels,  unto  and  among 
such  of  his  own  relations,  as  she  should  think_most  deserving  and  ap- 
prove  of,"  and  made  his  w-ife  executrix,  and  died  the  23d  of  January, 
1736.  without  issue. 

Elizabeth  his  widow  made  her  will  on  the  12th  of  June,  1737,  "and 
thereby  gave  all  her  estate,  right. "litle.  and  interest  to  Henry  Swin- 
dell  in  the  house  in  Hatton  Garden,  which  her  husband  had  bequeathed 
to  her  in  manner  aforesaid ;  and  after  giving  several  legacies,  be- 
queathed the  residue  of  her  personal  estate  to  the  defendant  Glyn 
and  two  other  persons,  and  made  them  executors,"  and  soon  after 
died,  without  having  given  nt_pr  before  hercTeaththegoods  in  the  said 
house,  or  without  having  disposed  of  any  of  her  husband's  jewels^to 
hirTelations^  " 

I'he  pfaintififs  insisting  that  Elizabeth  Harding  hacl_jio  property  in 
the  said  furniture  and  jewels  but  for  life,  with  a  limited  power  of 
disposing  of  the"  same  to  her  husband's  relations^which  she  hasJlTDt 
done^  brouglrttheir  bill  in  ordoF  thatThey  might  be  dist.  ibuted 
amongst  his  relations,  accorclmg  to  the  rule  ot  distribution  of  intes- 
tate's  ettects.  ' 

Master  5F  the  Rolls  [Hox.  Johx  Verney].  The  first  question 
is,  if  this  is  vested  absolutely  in  the  w'ife?  And  the  second,  if  it  is  to 
be  considered  as  undisposed  of,  after  her  death,  vvdio  are  entitled  to  it? 

As  to  the  first,  it  is  clear  the  wife  was  intended  to  take  only  benefi- 
cially during  her  life ;  there  are  lio  technical  words  in  a  will,  but  the 
manifest  intent  of  the  testator  is  to  take  place,  and  the  words  willing 
or  desiring  have  been_frequentlv  construed  to  amount  to  a  trust,  Kacles" 
&  ux.  v.lSngland  &  ux.,  2  Vern.  466,  and  the  only  doubt  arises  upon  the 
persons  who  are  to  take  after  her. 

Where  the  uncertainty  is  such,  that  it  is  impossible  for  the  court  to 
determine  what  persons  are  meant,  it  is  very  strong  for  the  court  to 


Ch.  4)  POWERS   IN   TRUST    AND    GIFTS    IMPLIED  *  345 

construe  it  only  as  a  recommendation  to  the  first  devisee,  and  make  it 
absolute  as  to  him ;  but  here  the  word  relations  is  a  legj^al  description, 
and  this  is  a  devise  to  such  relations,  and  operates  as  a  trust  in  the 
wife  by  way  of  power  of  naming  and  apportioning,  and  her  non-per- 
formance'of  the  power  shall  not  make  the  devise  void,  but  the  power 
shall  devolve  on  the  court ;  and  though  this  is  not  to  pass  by  virtue  of 
the  Statute  ot  Uistnbutions,  yet  that  is  a  good  rule  for  the  court  to  go 
by\  ^^nd  therefore  1  think  it  ought  to  be  divided  among  such  of  the 
relations  of  the  testator  Nicholas  Harding,  who  were  his  next  of  kin 
at  her  death;  and~do  order,  that  so  much  of  the  said  household  goods 
in  Hatton  Garden,  and  other  personal  estate  of  the  said  testator  Nich- 
olas Harding,  devised  by  his  will  to  the  said  Elizabeth  Harding  his 
wife,  which  she  did  not  dispose  of  according  to  the  power  given  her 
thereby,  in  case  the  same  remains  in  specie,  or  the  value  thereof,  be 
delivered  to  the  next  of  kin  of  the  said  testator  Nicholas  Harding,  to  be 
divided  equally  amongst  them,  to  take  place  from  the  time  of  the  death 
of  the  said  Elizabeth  Harding.^  * 


In  re  PHENE'S  TRUSTS. 

(Court  of  Chancery,  ISCS.     L.  R.  5  Eq.  346.) 

Edward  Phene,  by  his  will,  dated  the  2nd  of  November,  1836,  be- 
queathed to  his  executors  the  sum  of  £3000  £3  per  cent  Reduced  An- 
nuities, upon  trusts  for  the  benefit  of  his  sifter  rharlnffe  ]\Iill  during 
her  life ;  and  from  and  immediately  after  her  death  "in  trust  for  the 
benefit  of  her  children,  to  do  that  whicTTThey,  my  executors,  may  think 
most  to  their  advantage?" 

Charlotte  Mill  die^Tbn  the  28thof^Mav,  1867,  having  had  issue  five 
children,  two  of~whom  died  m  tierjlfetime.  Of  the  other  three,  one 
h ad  n^t  been  heard~of  for  many  years,  another  ^led^iTjan iiary,  1868, 
and_the  third  was  still  living. 

The~executors  named  in  the  will  died  in  the  lifetime  of  Charlotte 
Mill,  and  theTund  was  after  her  death  transferred  into  court  by  the  le- 
gal  personal   representatives   of   the  surviving  executor. 

A  petition  was  now  presented  by  the  surviving  child  of  Charlotte  Mill 
for  payment  or  transfer  to  him  of  such  share  of  the  fund  as  he  was 
entitled  to  under  the  will  of  the  testator. 

Two  questions  were  raised:  1.  Whether  the  children  who  prede- 
ceased the  tenant  for  life  took  any  interest  in  the  fund ;  and  2.  If  they 
did  not,  whether  the  children  who  survived  the  tenant  for  life  took  as 
tenants  in  common  or  as  joint  tenants. 

1  See.  also.  Doyley  v.  Atty.  Heneral,  4  Yin.  Abr.  48.5.  pi.  16  (1735) ;  Brown 
▼.  Higgs,  4  Ves.  708  (1799),  5  Yes.  49.5  (1800),  8  Yes.  561  (1803). 


346 


POWERS 


(Part  3 


Lord  Romilly,  M.  R.  I  think  itjs_very  clear  that  only_the  chil- 
dren  who  survived  their  mother  take,  and  tliat  they^take  as  tenants  in 
common; 

TITe~case  of  Brown  v.  Higg-s.  8  Ves.  561,  shows  that  a  Jestator  may 
give  tohis^  executors  an_arbitrary  power  of  determining  to  whom  a 
fund  shall  go ;  and  that  if  hejdoes_so,  this  arbitrary  discretioij^can 
be'exercisedjonly  bylhe  persons_to_whom  it  is  given :  _everi_the^court 
cannot_  exercise^  it.  The  testator  mayalso  say  that  the  discretion  shall 
be  exercised  at  a  particular  time ;  and  I  think  he  does  so  here  by 
fixing  the  time  when  the  fund  is  to  become  divisible.  Again,  you  must 
consider  who  are  the  objects  of  the  discretion;  they  must  be  persons 
in  existence  at  the  time  when  the  discretion  is  exercised ;  the  discretion 
cannot  be  exercised  for  the  benefit  of  a  dead  person. 

Now,  the  gift  here  is  from  and  after  the  death  of  the  tenant  for  life, 
for  the  benefit  of  her  children,  to  do  that  which  the  executors  might 
think  most  to  their  advantage.  I  think  that  gives  the  fund  to  the  exec- 
utors  to  divide  among  the  class  oF  children  who  siirvive  the  tenanTTor 
lifL-JIlie.  cOUfris"perfonnin£jthe"'oHrce  oTthe  executors,  and  rnust^ve 
the  same 


iLjjtXUie  same_2ersons. 

Then  the  testator  says  to  his  executors,  "You  may  give  it  amongst 
that  class  as  you  think  fit."  That  does  not  create  a  joint  tenancy, 
because  his  meaning  clearly  is,  that  the  executors  are  to  divide  the_ 
and   the^  court 


fundj  and  the^courtT'standing  in~their  place,  must  also  divide  it, 
that  is,  give  it  to  the  objects  of  the  testator's  bounty  as  tenants  in 
common.^ 


CASTERTON  v.  SUTHERLAND. 

(Court  of  Chancery,  1804,     9  Ves.  445.) 

Thomas  Fowler,  by  his  will,  dated  the  30th  of  January,  1766,  de- 
vised all  his  freehold  lands,  &c.,  in  Chelsea,  or  elsewhere,  to  his  wife 
Lucy  for  her  life,  and  from  and  after  her  decease  to  \i\'^  ybi1drptr-in 
the  following  manner :  "Unto  and  amongst  all  and  every  our  children, 
in  such  manner  and  in  such  proportions  as  my  said  ^vvife_shall  either 
in  her  lifetime  or  by  her  last  will  and  testament  direct_an^^P£Qiflt-_" 
He~empowefed  his  wife  to  sell  the  estates,  and  to  lay  out  the  money, 
and  receive  the  interest  for  her  life ;  and  after  her  decease  he  di- 
rected and  appointed  the  same,  both  principal  and  interest,  to  be  paid 
and  applied  "to  and  among  our  children  in  such  proportions  as  afore- 
said." He  appointed  his  wife  executrix.  The  testator  l^ft  his  wjje 
surviving  him,  ajid  five  children :  John,  Thomas,  William,  Henry,  and 
Lucy.  TohrL_ Thomas,  and  William  died  infants  and  unmarried  in 
the  life  of  their  mother.    Henry  attained  21,  and  married;   but  die3 


2  Accord:     In  re  White's  Trusts,  H.  R.  V.  Johns.  656  (1860);    Carthew  v, 
Euraght,  20  W.  R.  743. 


Ch.  4)  POWERS   IN   TRUST    AND    GIFTS    IMPLIED  347 

in  the  life  of  his  mother;  leaving  issue  one  daughter.  Sarah  Caster- 
toiTI  Lucy,  the  daughter,  survTveH^U  her  brothers;  but  die3~also  in 
the  life  oflier  mother;  having  married  the  defendant  Thoniaj^  S u th- 
erland  the~elder ;  byjwhom  she  had  issue  the  othei^de f endant,  Thomas 
S'utherlandthe  younger.  The  widow  died:  not  having  executed  ^ny 
appointment.  The  bill  was  filed  by  James  Casterton  and  Sarah,  his 
wife;    claiming  in  her  right  under  the  will. 

The  Master  of  the  Rolls  [Sir  William  Grant]  was  clearly  of 
opinion,  upon  Reade  v.  Reade  [5  Ves.  744],  that  this  was  a  tenancy 
in  common  among  the  children  in  fifths,  subject  to  the  power  of  ap- 
pointment; and  that  though  in  the  devise  of  the  lands  in  the  first 
part  of  the  will  there  were  no  words  of  inheritance,  yet  in  the  sub- 
sequent part  the  testator  giving  his  wife  power  to  sell  the  estate,  and 
appointing  the  money,  both  principal  and  interest,  among  the  chil- 
dren, as  the  testator  could  not  be  supposed  to  intend  to  give  them  a 
larger  interest  in  that  part  than  in  the  former,  they  took  several  estates 
of  inheritance. 

The  decree  declared,  that  the  children  of  the  testator,  living  at  his 
decease,  became  entitled  equally  as  tenants  in_common  to  the  Freehgld 
estates^  of  whichTie  (Iied^  seTsed,  subject  to  the^state  for  life  and  power 
6i  appomtment  oftTie  widow;  and,  the  widow  having  made  no  appoint- 
ment, the  pTamtiff  Sarah  Casterton,  as  only  child  and  heiress  at  law  of 
her  father  Henry  Fowler,  who  Avas  heir  at  law  of  his  brothers  Wil- 
liam,  Thomas,  and  John,  who  survived  the  testator,  and  died  unmar- 
ried, and  without  issue,  is  in  the  events,  that  have  happened,  entitled 
to  four  fifths ;  and  the  testator's  daughter  Lucy,  the  deceased  wife  of 
Thomas  Sutherland  the  elder,  was  entitled  to  the  remaining  fifth ;  and 
th^defendant  Thomas  Sutherland  the  younger  is  entitled,  as  her  oiily" 
son,  to  that  fifth.^ 


KENNEDY  v.  KINGSTON. 

(Court  of  Chancery,  1S21.     2  Jac.  &  W.  431.) 

Ann  Ashby,  by  her  will,  dated  the  3d  of  August  1785,  bequeathed 
as  follows :  After  the  decease  of  my  sister  Charlotte  Williams,  I  give 
£500  to  my  cousin  Ann  Rawlins  for  her  life,  and  at  her  decease  to 
divide  it  in  portions  as"~^he  shall  chuse  "to  her  children ;  and  in  case" 
she  "dies  before  meT"!  leave  the  sum  to  be  equally  divided  amongst 

8  Accord :  Faulkner  v.  Wynford,  15  L.  J.  N.  S.  8  (1845)  (devise  to  trustees 
■with  active  duties  in  trust  for  the  daughter  for  life,  at  her  decease  to  "re- 
ceive the  same  to  and  for  the  use  and  benefit  of  all  such  child  and  children 
as  she  might  leave,  equally  between  them,  share  and  share  alike,  at  his  and 
their  ages  of  twenty-five  years,  in  such  manner  and  form  as  his  [the  testa- 
tor's] said  daughter  should  by  deed  or  w-ill  direct" ;  in  case  he  left  no  child, 
or  her  children  should  die  before  25,  then  over). 

See,  also,  Burrough  v.  Philcox,  5  Myl.  &  C.  72  (1840) ;  Lambert  v.  Thwaites, 
L.  R.  2  Eq.  151  (1866) ;    Wilson  v.  Duguid,  24  Ch.  Div.  244  (1883). 


348  POWERS  (Part  3 

her  children,  after  the  decease  of  my  sister  Charlotte  Williams."  She 
appointed  her  sister  sole  executrix;  who  survived  her,  and  died  in 
the  year  1795. 

Ann  Rawlins  had  four  children,  William  Rawlins,  Charlotte  Hawkes- 
worth,  Jane  Walsh  and  Elizabeth  Ann  Rainsford.  W.  Rawlins  died  in 
the  year  1807;  and  after  his  death,  Ann  Rawlins  made  a  will,  by 
which  she  appointed  i250,  part  of  the  sum  of  i500,  to  her  daughter, 
E.  A.  Rainsford;  £100  to  C.  Hawkesworth,  and  the  remaining  £150 
to  Jane  Walsh.  She  survived  her  daughter  E.  A.  Rainsford,  and  made 
a  codicil  to  her  will,  which  however  did  not  affect  the  sum  of  £250  ap- 
pointed to  her.  She  died  in  November  1812,  leaving  her  two  daugh- 
ters C.  Hawkesworth  and  Jane  Walsh  surviving  her.  C.  Hawkesworth 
died  in  the  year  1809  [1819?].  A  suit  had  been  instituted,  having 
for  one  of  its  objects,  to  secure  the  legacy  of  £500,  and  a  petition  was 
now  presented,  praying  that  the  rights  of  the  parties  to  it  might  be 
declared. 

The  INIaster  of  the  Rolls  [Sir  Thomas  Plumer].  This  ques- 
tion arises  on  a  very  short  clause  in  a  will ;  the  sum  is  given  to  Ann 
Rawlins  for  her  life,  "and  at  her  decease  to  divide  it  in  portions  as  she 
shall  choose  to  her  children."  It  is  first  to  be  considered  what  is  the 
import  of  these  words,  taken  alone,  without  reference  to  those  which 
follow.  Two  out  of  the  four  children  died  in  the  lifetime  of  the  donee 
of  the  power,  one  before  and  the  other  after  the  execution  of  the  ap- 
pointment. The  question  will  be,  whether  it  is  not  to  be  construed  as 
pointing  out  as  the  objects  of  bounty  those  only  who  should  survive 
the  mother;  for  the  power  given  is,  to  divide  at  her  decease.  Then, 
could  it  be  executed  in  favour  of  one  who  died  in  her  lifetime?  The 
term  children  is  general,  but  as  the  power  is  to  be  executed  at  her  de- 
cease, it  must  be  for  the  benefit  of  those  then  capaBTe  oTTalangT  Tt 
is,  therefore,  necessarily  confined  to  children  in  existence  ail  the" time 
of  her  death.  Therefore  none  but  the  two  who  have  survived  can  take 
under  the  power;  they  are  clearly  entitled  to  the  sums  appointed'Tb 
them. 

The  difficulty  is  with  respect  to  the  part  as  to  which  there  is,  in  the 
events  that  have  happened,  a  non-execution.  There  is  no  gift  over  in 
default  of  appointment  in  express  terms ;  but  if  the  mother  had  died 
without  making  any  appointment,  would  not  the  children  surviving  her 
have  been  entitled?  would  they,  though  certainly  objects  of  the  tes- 
ta!inx^  bounty,  have  taken  nothing?  Upon  that  question  the  case  be- 
comes one  of  that  class  where  the  objects  of  the  power  are  definite, 
and  the  power  is  only  to  appoint  the  proportions  in  which  they  are  to 
take,  without  excluding  any ;  for  here  the  mother  must  have  given  a 
share  to  each ;  she  could  not  have  made  an  exclusive  or  an  illusory  ap- 
pointment. The  power,  therefore,  must  be  understood  as  tacitly  in- 
cluding a  provision  for  "ari"  equal  division  of  the  fund  amongst  the  xrb- 
jects,  in  the  event  of  no  appointment  being  made    The  two  who  sur- 


Ch,  4)  POWERS   IN   TRUST    AND    GIFTS    IMPLIED  34^ 

vived  would,  therefore,  be  the  only  persons  to  take ;  they  only  could 
take  under  an  appointment,  and  if  no  appointment  were  made,  they 
would  take  by  necessary  implication. 

Supposing  that  to  be  the  construction,  if  the  bequest  were  confined 
to  the  first  clause,  the  next  question  is  whether  the  other  part  makes 
any  difiference?  In  case  of  Ann  Rawlins  dying  before  the  testatrix, 
tHe~suniTs  to  be  equally  divided  amongst  the  children;  and  it  is  said 
that  the  mention  of  one  event  upon  which  they  were  to  take  in  de- 
fault of  appointment,  is  an  exclusion  of  any  other ;  and  that  it  was, 
therefore,  not  meant  to  go  to  them  except  upon  an  event  that  has  not 
happened.  But  this  does  not  appear  to  me  to  be  a  necessary  conse- 
quence. She  might  die  in  the  lifetime  of  the  testatrix ;  she  might  sur- 
vive and  make  a  complete  appointment ;  or  she  might  survive  and  make 
an  incomplete  appointment.  There  is  no  provision  in  express  terms 
for  the  event  which  has  actually  happened  of  her  surviving  and  mak- 
i n g  an  i iTc ci m pi e t e  appointment  or  for  her  making  no  appointment. at 
all  :  liut  that  is  quite  consistent  with  the  express  provision  for  her  dy- 
ing before  the  testatrix,  as  in  that  event  the  fund  was  not  disposed  of 
by  tBFprevious  part  of  the  will. 

It  does  not,  therefore,  seem  to  me  that  this  provision  annihilates  the 
implication  arising  from  the  previous  part  of  the  sentence^  which  I 
consi(rer  as  embracing  a  power  to  appoint  to  the  children  who  should 
survive,  with" a  gift  to  them  in  default  of  appointment.  The  two  sur- 
vivors, therefore,  arc  entitled  alone  to  the  whole  sum.* 


4  See,  also,  Walsh  v.  Wallinger  (1830)  2  R.  &  Myl,  78  (devise  to  trustees 
upon  trust  to  sell,  and,  after  paying  expenses,  encumbruEces  and  debts,  to 
pay  the  residue  "'unto  his  said  3ifei_ia_and  for  her  own  use  and  benetit.  und 
di.sposal,  trusting  that  she  would  thereout  provide  for  and  maintain  his 
family,  and  particularly  his  only  son ;  and  at  her  decease,  give  and  be(lu^'ath 
the  same  to  her  children  by  him  in  such  "milliner  as  she  should  appoint") 
Fro?1and  v.  Tearson  (1SG7)  L.  R.  3  Eq.  G5S  (testator  appoints  wife  execntrix 
and  gives  her  for  her  sole  use  during  her  life  all  his  property,  both  person- 
al and  real,  and  then  proceeded,"!  |ilso  direct  her,  my  dear  wife  aforesaid, 
to  pay  my  funeral  expenses,  and  all  my  just  debts,  and  at  her  decease  to 
m^ke  such  a  distribution  and  disposal  of  all  my  then  remaining  property"" 
aiiiong  Tny~chlldren  as  may  seem  just  and  equitable,  according  to  her  best 
discretion  arrd  consideration'"). 

■3ToOTFT.Tfolliot,  19  L.  R.  Ir.  499  (1SS7):  Devise  to  three  nieces  for  their 
joint  and  several  lives  subject  to  the  following:  "In  leaving  my  property  to' 
rny  three  nieces  as~co-heirs,  it  is  my  wish  that  if  mj'  nephew  James  Wil- 
liam Chaine  conducts  himself  to  their  satisfaction  the  (sic)  shall  leave  him 
the  property  I  now  leave  to  them."  In  the  absence  of  any  appointment  and 
the  nephew  having  predeceased  the  nieces,  thus  claiming  that  the  nephew 
was  not  entitled,  but  the  heirs  at  law  of  the  testator  were  entitled,  The  Mas- 
ter of  Rolls  said: 

"There  are  several  classes  of  cases  in  which  the  question  arises  wt\gtJiei:_ 
a  power  to  appoint  is  a  mere  power,  so  that  its  noii-execution  defeats  the 
objects,  or  whether  it  is  to  be  regarded  as  in  the  nature  of  a  trust  l;o  wUTclf 
thrsTTourt  will  give  effect,  even  when  the  power  is  not  executed,  """^ 

**FtTg^2^n  estate  of  inheritance,  with  power  of  appointnunit.  If  the  lan- 
guagF'Qsed  ih  fte  execulion  of  the  power  amounts  to  a  precatory  trust,  the 
trust  will  fasten  itself  on  the  inheritance:    the  donee  of  the  poWfifWill  be 


350  POWERS  (Part  3 

In  re  WEEKES'  SETTLEMENT. 

(Chancery  Division,  1897.     L.  R,  1  Cli.  2S9.) 

Summons  for  payment  out  of  court  of  a  sum  of  Consols  standing 
to  the  credit  of  ex  parte  the  London,  Brighton  and  South  Coast  Rail- 
way Company,  the  account  of  the  persons  interested  in  Brookside  Farm 
under  the  settlement  referred  to  in  the  summons. 

By  a  settlement  dated  April  27,  1857,  made  on  the  marriage  of  Emily 
Maiy  W'eekes  with  James  Slade,  certain  real  property_to  which  Emily 
Alary  Weekes  was  entitled,  which  included  the  remainder  in  fee  of 
Brookside  Farm  expectant  on  the  death  of  her  mother,  was  settled  to 
uses  in  favour  of  the  intended  wife  for  life,  and  upon  her  death_as_she 
should,  whether  covert  or  sole,  by  will  appoint,  and  in  default  of  ap- 
pointment to  the  use  of  the  person  or  persons  who  at  the  decease  of 
E.  M.  Weekes  would  have  been  entitled  thereto  by  descent  in  case  she 
had  died  seised  thereof  by  purchase  intestate  and  a  widow. 

By  a  settlement  of  even  date  certain  personal  property  therein  de- 
scribed was  settled  in  favour  of  James  Slade  and  his  wife  during  their 
lives  and  the  life  of  the  survivor,  and  afte£  the  decease  of  the  sur- 
vivor in  trust  for  the  issue  of  the  marriage  as  the. husband  and  wife 
should  by  deed  jointly  appoint,  and  in  default  as  the  survivor  should 
by  deed  or  will  appoint,  and  in  default  of  appointment  for  all  the  chil- 

bound  to  execute  it,  and  if  lie  fail  to  do  so  the  court  will  carry  it  into  effect 
as  if  he  had.  This  is  the  case  of  Brown  v.  Higgs,  4  Ves.  708,  5  Yes.  495, 
499,  8  Ves.  561,  IS  Ves.  192,  and  the  like.  In  Bruwn  v.  Higgs  stress  is  laid 
on  the  circumstances  that  the  testator  had  given  the  donee  of  the  power  'an 
interest  extensive  enough  to  enable  him  to  discharge  it.' 

"On  the  other  hand,  if  the  words  used  indicate  a  mere  power,  and  do  not 
impose  an  obligation,  or  even  amount  to  a  request,  then  the  court  will  treat 
the  power  to  appoint  as  mere  surplusage — such  a  power  being  involved  in 
the  nature  of  the  estate  already  conferred  on  the  donee.  In  such  a  case,  if 
the  power  be  not  exercised,  the  court  will  of  course  not  interfere.     *     *     »- 

"There  is  however,  a  distinct  class  of  cases  where  the  donee  of  the  power 
takes  not  more  than  a  life  estate.  In  these,  however  clear  the  expression 
of  desire  on  the  part  of  the  donor  in  favor  of  a  particular  person  or  class 
of  persons  may  be,  yet,  as  the  donee  has  no  estate,  or  none  beyond  his  life, 
the  trust  to  exercise  the  power  is  as  such  personal,  and  does  not  directly 
attach  upon  the  inheritance,  save  in  so  far  as  the  court  finds  in  the  lan- 
guage an  implication  in  favor  of  the  objects  of  the  power  in  default  of  ap- 
pointment. In  this  case,  if  they  take  the  estate  they  take  it  by  implication, 
and  thus  by  way  of  limitation  under  the  instrument  creating  the  power.  In 
the  former  class  of  cases  the  court  acts  by  executing  the  power  in  lieu  of  the 
donee;  in  the  latter  by  simply  giving  effect  to  the  estate  implied  in  the 
words  of  the  deed  or  will. 

"That  such  an  implication  may  arise  from  the  language  in  which  the  pow- 
er to  appoint  is  itself  couched,  without  anj'thing  else,  is  well  settled ;  and 
in  the  case  now  before  me  it  is  not  disputed  that  an  implication  is  to  be  dis- 
covered in  favor  of  James  W.  Chaine.  The  question  in  dispute  is,  what  is 
the  estate  or  interest  to  be  implied,  and  in  what  event?  I  am  of  opinion 
that  in  cases  where  the  implication  is  to  be  gathered  from  the  words  of  the 
power  to  appoint,  and  from  them  alone,  the  estate  cannot  be  greater  than  the 
greatest  estate  which  the  object  would  have  taken  under  the  power,  and 
that  no  estate  can  lie  implied  when  the  exercise  of  the  power  by  the  donee,  if 
living,  would  have  been  impossible." 


Ch.  4)  POWERS   IX   TRUST    AND    GIFTS    IMPLIED  351 

dren  who  being  a  son  or  sons  should  attain  twenty-one,  or  being  a 
daiighler  or  daughters  should  attain  that  age  or  marry,  and  if  more 
than  one  in  equal  shares. 

Pursuant  to  the  powers  given  to  them  by  their  Acts  the  London, 
Brighton  and  South  Coast  Railway  Company  took  certain  parts  of  the 
Brookside  farm  and  paid  the  purchase  money  into  Court,  and  the  Coh- 
sol?-*ft-€o«rt  represented  such  purchase-money. 

"Hmily  Alary  Slade  died  in  Alay,  1885,  having  made  her  will,  dated 
April  15,  1885,  which  so  far  as  is  material  was  in  the  following  words: 
"I  bequeath  to  my  husband  James  Slade  a_2ife  interest  in  all  property 
real  or  personal  which  may  come  to  me  in  accordance  with  the  will  of 
myTate  father  Richard  Weekes  and  also  in  the  house  which  I  took 
under  the  will  of  my  late  cousin  George  Weekes  and  I  give  to  him 
power  to  dispose  of  all  such  property  by  will  amongst  our  children  in 
accordance  witli  the_|)ower  granted  to  him  as  regards  the  other  prop- 
erty which  I  have  under  my  marriage  settlements.  I  also  bequeath 
unto  him  the  said  James  Slade  all  my  effects  clothes  jewellry  and  other 
articles  to  be  at  his  entire  will  and  disposal."  The  will  contained  nq^ 
gift  over  in  default  of  appointment. 

Jarnes  Slade  died  in  February,  1893,  intestate  and  without  having 
exercised  the  power  of  disposition  given  him  by  the  will  of  his  wife, 
Emily  ]\Iary  Slade. 

There  were  fourteen  children  of  the  marriage,  eight  of  whom  sur- 
vived their  mother  and  were  living. 

"The  tenant  for  lif  2  having  recently  died,  this  was  an  application  for 
payment  out  of  the  Consols  in  court  in  eighths  on  the  ground  that  the 
win  of  Emily  Mary  Slade  gave  to  James  Slade  a  life  interest  in  the 
Brookside  Farm  with  a  power  to  appoint  among  the  children  of  tlie 
marriage,  and  that  this  power  not  having  been  exercised  the  children 
were  entitled  equally.  The  respondent,  the  eldest  son,  claimed _the 
Consols  as  heir-at-law  oL Kmily.MaryJ^^eek^s. 

Romer7J.  By  the  settlement  of  April  27,  1857,  the  property  now 
represented  by  the  Consols  in  court  was  settled  on  Emily  Mary  Slade 
for  life  with  remainder  as  she  should  by  will  appoint,  and  with  a  gift 
over  in  default  of  appointment. 

By  her  will,  dated  April  15,  1885,  j\Irs.  Slade  bequeathed  the  prop- 
erty in  the  following  terms:  [His  Lordship  read  the  will  as  above  set 
out.] 

The  husband  did  not  exercise  the  power  of  appointment,  and  the 
question  is  whether  the  children  take  in  default  of  appointment. 

Now,  apart  from  the  authorities,  I  should  gather  from  the  ternis__gf 
the  will  that  it  was  a  mere  power  that  was  conferred  on  tlie  husband, 
and  not^qn^  coupled_iYith  a  trust  tb.at  hejvvas  bound  to  exercise.  I 
see  tiq  w.CUlds.  in  the  will  to  justify  me  in  holding  that  the  testatrix  in- 
tended that  tlie  children  should  take  if  her  husband  did  not  execute 
the  power.  ~  ~~ 


:^53  POWERS  (Part  3 

This  is  not  a  case  of  a  gift  to  the  children  with  power  to  the  hus- 
band to  seTect,"or  to  such  of  the  children  as  the  husband  should,"  se- 
lecl'by  exercising  the  power. 

If  in  this  case  the  testatrix  really  intended  to  give  a  life  interest  to 
her  husband  and  a  mere  power  to  appoint  if  he  chose,  and  intended  if 
he  did  not  think  fit  to  appoint  that  the  property  should  go  as  in  de- 
fault of  appointment  according  to  the  settlement,  why  should  she  be 
bound  to  say  more  than  she  has  said  in  this  will  ? 

I  come  to  the  conclusion  on  the  words  of  this  will  that  the  testatrix 
only  intended  to  give  a  life  interest  and  a  power  to  her  husband — cer- 
tainly she  has  not  said  more  than  that. 

Am  I  then  bound  by  the  authorities  to  hold  otherwise?  I  think  I 
am  not.  The  authorities  do  not  shew,  in  my  opinion,  that  there  is  a 
hard  and  fast  rule  that  a  gift  to  A.  for  life  with  a  power  to  A.  to~ap- 
point  among  a  class  and  nothing  more  must,  if  there  is  no  gift  over 
in  the  will,  be  held  a  gift  by  implication  to  the  class  in  default  of  the 
power  being  exercised.  In  my  opinion  the  cases  shew  (though  there 
may  be  found  here  and  there  certain  remarks  of  a  few  learned  judges 
which,  if  not  interpreted  by  the  facts  of  the  particular  case  before 
them,  might  seem  to  have  a  more  extended  operation)  that  you  must 
find  in  the  will  an  indication  that  the  testatrix  did  intend  the  class  or 
some  of  the  class  to  take — intended  in  fact  that  the  power  should  be 
regarded  in  the  nature  of  a  trust — only  a  power  of  selection  being 
given,  as,  for  example,  a  gift  to  A.  for  life  with  a  gift  over  to  such 
of  a  class  as  A.  shall  appoint. 

I  will  now  examine  the  authorities  which  have  been  cited,  and  shew 
that  this  is  so,  though  I  may  remark  that  the  case  before  me  is  pe- 
culiar in  this,  that  there  is  a  gift  over  in  default  of  appointment  by 
the  husband  by  force  of  the  settlement,  so  that  this  will  need  not  in 
aiiycase  come  within  the  general  proposition  above  stated. 

N"ow  do  the  authorities  bear  out  what  I  have  stated  ?  One  of  them, 
an  Irish  case,  Healy  v.  Donnery,  3  Ir.  C.  L.  Rep.  213,  clearly  tells 
against  the  proposition  contended  for.  In  that  case  there  was  a  gift 
of  a  freehold  interest  to  a  daughter  for  life,  with  power  by  deed  or 
will  to  dispose  of  the  same  to  and  among  her  children,  with  no  gift 
over  in  default  of  appointment.  There  was  indeed  a  residuary  gift, 
but  that,  as  pointed  out  by  the  Court  of  Appeal  in  In  re  Brierley,  43 
W.  R.  36,  is  not  equivalent  to  a  gift  over  in  default  of  appointment  for 
the  purposes  of  the  above  proposition.  The  case,  therefore,  was  mere- 
ly a  devise  for  life  with  power  by  deed  or  will  to  appoint  the  remain- 
der to  and  among  the  children,  and  that  was  held  not  to  give  an  es- 
tate~by  implication  to  the  children.  The  proposition  now  contended 
for  was  then  urged  also  by  the  party  who  failed,  and  was  thus  dealt 
with  by  Pennefather,  B.  in  his  judgment,  3  Ir.  C.  L.  Rep.  216:  "It  is 
argued  that  the  power  to  appoint  among  the  children' is  tantamount  to 
a  trust  created  for  them.     I  have  always  considered  that  there  was  a 


Ch.  4)  POWERS   IN  TRUST    AND    GIFTS    IMPLIED  353 

distinction  between  a  mere  power  and  one  coupled  with  a  trust;  and 
though  I  called  on  counsel  for  an  authority  to  the  contrary,  no  such 
case  has  been  cited.  But  particular  cases  have  been  cited,  in  which 
Courts  have  thought  that  they  collected  from  the  peculiar  words  of 
the  power  an  intention  of  the  testator  to  give  to  children  in  default  of 
appointment.  The  general  position"  (quaere  proposition)  "contended 
for  by  the  defendant's  counsel  has  never  been  laid  down ;  and  I  cannot 
say  that  this  case  falls  within  the  authority  of  any  of  the  cases  cited." 

But  other  cases  have  been  cited  to  me,  so  I  will  refer  to  them  also, 
and  shew  that  this  statement  of  the  law  by  Pennefather,  B.,  is  cor- 
rect. 

In  Brown  v.  Higgs,  4  Ves.  708,  the  gift  was  as  follows :  [His  Lord- 
ship stated" the  gift.]  In  other  w^ords,  it  was  a  gift  of  the  kind  I 
have  before  indicated — a  gift  to  such  of  the  children  as  a  certain^^er- 
son  should  appoint,  that  is  to  say,  there  was  a  mere  power,  oi.jsslec- 
tiotTgrven.  The  will  on  its  wording  sufficiently  set  forth  the  inten- 
tio*!!  that  the  class  or  some  of  the  class  should  take.  That  this  was 
really  the  ground  of  the  decision  of  the  Master  of  the  Rolls  (Lord 
Alvanley)  is  apparent  from  his  judgment,  for  he  says,  4  Ves.  719: 
"Upon  the  true  construction  of  this  will  I  am  of  opinion,  it  is  equiv- 
alent to  saying,  he  gives  to  the  children  of  Samuel  Brown  or  of 
William  Augustus  Brown,  with  a  power  to  John  Brown  to  select  any 
he  thinks  fit  and  to  exclude  the  others ;  and  it  is  too  much  to  contend 
that  nothing  is  intended  for  them  exclusive  of  the  appointment  of  John 
Brown.  The  fair  construction  is,  that  at  all  events  the  testator  meant 
it  to  go  to  the  children  ;  and  these  words  of  appointment  he  used  only 
to  give  a  power  to  John  Brown  to  select  some  and  exclude  the  oth- 
ers." That  is  to  say,  where  you  can  find  that  the  power  is  only  a 
power  to  select,  the  gift  being  to  a  class,  of  course,  if  the  power  is 
not  executed  the  class  take.  That  case  came  before  the  Court  again. 
5  Ves.  495.  The  particular  point  that  I  am  considering  is  dealt  with, 
5  Ves.  500,  and  Lord  Alvanley,  again  considering  the  case,  says  this, 
after  referring  to  the  words  of  the  will:  "Upon  this  disposition  and 
the  facts,  that  have  taken  place,  the  question  is,  whether  this  sentence 
in  the  will,  upon  which  the  question  arises,  is  to  be  considered  as  mere- 
ly giving  John  Brown  a  power  if  he  thinks  fit,  to  give  the  profits  of 
the  farm,  of  which  he  was  the  trustee,  to  the  children  of  Samuel  Brown 
or  William  Augustus  Brown,  or  whether  upon  the  true  construction  it 
is  anything  more  or  less  than  a  mere  trust  in  him,  with  a  power  to 
single  out  any  he  m'ght  think  more  deserving,  but  a  gift  to  him  in 
trust  for  these  children  at  all  events;  and  I  am  of  the  same  opinion, 
upon  very  full  consideration,  and  after  the  very  able  arguments  I  have 
heard  to  shake  that  opinion,  that  it  is  a  trust,  and  not  a  power  in  John 
Brown ;  and  that  his  nonexercise  of  that  power,  or  the  circumstances 
of  TTis  being  incapable  of  exercising  it,  will  not  prevent  the  objects  of 
the  testator's  bounty  from  taking  in  some  manner ;  though  the  power 
4  Kales  Prop. — 23 


3.'j4  powers  (Part  3 

of  distribution  on  account  of  the  death  of  the  trustee  cannot  now  be 
exercised." 

The  case  finally  came  on  appeal  before  Lord  Eldon,  8  Ves.  561.  and 
he  dealt  with  the  precise  point,  Ibid.  570,  as  follows :  "It  is  perfectly 
clear,  that,  where  there  is  a  mere  power  of  disposing,  and  that  power 
is  not  executed,  this  Court  cannot  execute  it.  It  is  equally  clear,  that, 
wherever  a  trust  is  created,  and  the  execution  of  that  trust  fails  by 
the  death  of  the  trustee,  or  by  accident,  this  Court  will  execute  the 
trust.  One  question  therefore  is,  whether  John  Brown  had  a  trust  to 
execute,  or  a  power,  and  a  mere  power."  And  under  the  wording  of 
that  will  he  held  that  it  was  a  trust.  That  case,  therefore,  obviously, 
is  no  authority  for  the  general  proposition  contended  for  before  me. 

Next  comes  the  case  of  Burrough  v.  Philcox,  5  My.  &  Cr.  JZ.  In 
that  case  the  will  was  very  peculiar.  The  testator  directed  that  cer- 
tain stock  and  real  estate  should  remain  unalienated  until  certain  con- 
tingencies were  completed,  and,  after  giving  life  interests  in  such  stock 
and  estates  to  his  two  children  with  remainder  to  their  issue,  he  de- 
clared that  in  case  his  two  children  should  both  die  without  leaving 
lawful  issue,  the  same  should  be  disposed  of  as  after  mentioned,  that 
was  to  say,  the  survivor  of  his  two  children  should  have  power  to  dis- 
pose by  will  of  his^re'al  and  personal  estate  "amongst  my  nephews  and 
nieces,  or  their  children,  either  all  to  one  of  them  or  to  as  many  of 
them"  as  his  surviving  child  should  think  proper.  This  was  held  to 
create  a  trust  in  favour  of  the  class  subject  to  a  power  of  selection  and 
distributibiTTn  the  surviving  child.  And  why?  Because  by  the  terms 
of  his  will  the  testator  intended  and  purported  to  dispose  of  the  prop- 
erty absolutely,  seeing  that  on  the  contingencies  being  completed  he  de- 
clared that  the  property  should  be  "disposed  of  as  after  mentioned." 
The  ground  of  the  decision  is  stated  in  the  judgment.  Ibid.  92,  thus: 
"These  and  other  cases  shew  that  when  there  appears  a  general  inten- 
tion in  favour  of  a  class,  and  a  particular  intention  in  favour  of  indi- 
viduals of  a  class  to  be  selected  by  another  person,  and  the  particular 
intention  fails,  from  that  selection  not  being  made  the  Court  will  can-y 
into  effect  the  general  intention  in  favour  of  the  class."  This  case, 
therefore,  is  equally  no  authority  in  favour  of  the  proposition. 

With  regard  to  the  case  of  Witts  v.  Boddington,  3  Bro.  C.  C.  95, 
that,  again,  was  on  a  peculiar  will,  the  decision  being  that  the  power  as 
between  the  testator  and  the  donee  of  the  power  was  in  the  nature  of 
a  trust. 

Forbes  v.  Ball,  3  Mer.  437,  is  very  shortly  reported.  It  was  held 
that  the  power  had  been  exercised,  and  there  is  only  a  short  statement 
that,  3  Mer.  440,  "the  Court  was  of  opinion  that  the  words  in  the  tes- 
tator's will  raised  a  trust  for  the  wife's  relations,  subject  to  her  ap- 
pointment." That  is  all  that  is  stated  on  that  point;  but  if  that  was 
decided,  then  it  is  clear  at  least  to  my  mind  that  it  is  a  decision  upon 
the  particular  wording  of  the  will,  which  was  as  follows:  "I  give  to 
A.  C.  £500.,  and  it  is  my  will  and  desire  that  A.  C.  may  dispose  of  the 


Ch.  4)  POWERS   IN   TRUST    AND    GIFTS    IMPLIED  355 

same  amongst  her  relations,  as  she  by  will  may  think  proper."  The 
Court  must  have  held,  I  have  no  doubt,  that  by  force  of  the  words 
"my  will  and  desire"  there  was  a  sufficient  indication  of  the  intention 
of  the  testator  that  A.  C.  should  dispose  of  it.  The  words  "my  will 
and  desire"  might  be  said  (especially  as  the  authorities  on  precatory 
trusts  then  stood)  to  be  incompatible  with  the  idea  that  a  mere  power 
was  given  to  A.  C.  which  she  might  or  might  not  exercise  at  her  op- 
tion.    That  case  is  no  authority  for  the  general  proposition. 

It  is  clear,  in  my  opinion,  from  the  judgment  in  Birch  v.  Wade,  3 
V.  &  B.  198,  that  the  true  ground  of  the  decision  there  was  that  the 
power  was  in  the  nature  of  a  trust  by  force  of  the  w^ords  that  had 
been  used  by  the  testator  of  his  "will  and  desire." 

In  Re  Caplin's  Will,  2  Dr.  &  Sm.  527,  the  testator,  after  giving  a 
fund  to  his  wife  for  life,  directed  that  after  her  death  it  should  be 
paid  to  such  and  so  many  of  the  relatives  or  friends  of  the  wife  as 
she  should  by  will  appoint — in  other  words,  it  was  a  case  of  the  kind 
I  have  before  referred  to,  a  gift  to  a  class  or  such  of  a  class  as  should 
be  selected  by  the  donee  of  the  power.  In  that  case  there  was  a  gen- 
eral statement,  2  Dr.  &  Sm.  531,  which  went  beyond  the  case;  but 
that  statement  of  the  judge  should,  I  think,  be  considered  with  refer- 
ence to  the  case  that  the  A^ice-Chancellor  had  before  him. 

Re  White's  Trusts,  Job.  656,  659,  was  like  Re  Caplin's  Will.  2  Dr. 
&  Sm.  527.  It  w^as  a  trust  "for  A.  for  life,  and  if  he  should  die 
childless,  upon  trust  to  apply  the  sum  to  the  benefit  of  such  of  tes- 
tator's children,  or  their  issue,  as  the  trustees  should  think  fit,  for  the 
interest  and  good  of  testator's  family."  There,  again,  there  was  a  gen- 
eral statement  made  by  the  learned  judge,  and  in  my  opinion,  unless 
checked  by  reference  to  the  case  before  him.  that  statement  was  too 
large.  The  Vice-Chancellor  said :  "It  is  settled  by  Brown  v.  Higgs, 
4  Ves.  708,  and  Burrough  v.  Philcox,  5  My.  &  Cr.  71,  that,  where  there 
is  a  power  to  appoint  among  certain  objects,  and  no  gift  in  default  of 
appointment,  the  court  will  imply  a  gift  to  the  objects  of  the  power 
equally."  I  have  pointed  out  that  those  two  cases  did  not  decide  that. 
I  have  no  doubt  Wood,  V.-C,  in  making  that  statement,  meant  it  to  be 
considered  with  reference  to  cases  where  the  facts  were  similar  or 
somewhat  similar  to  those  in  Brown  v.  Higgs,  4  Ves.  708,  and  Bur- 
rough  V.  Philcox,  5  ?ily.  &  Cr.  IZ, — that  is  to  say,  cases  where  vou 
can  gather  from  the  will  that  the  class  are  intended  to  take,  and  a  se- 
lection only  is  given  to  the  person  having  the  power  of  appointment, 
as  was  shewn  by  the  observation  in  Burrough  v.  Philcox,  Ibid.  92,  to 
which  I  have  already  referred. 

Butler  V.  Gray,  L.  R.  5  Ch.  26,  was  a  case  where  there  was  a  suffi- 
cient indication  that  the  class  was  to  take;  and  lastly.  In  re  Brierley, 
43  W.  R.  36,  was  a  decision  not  in  point  on  the  proposition  contend- 
ed for. 

I  have  now  shewn  that  none  of  the  cases  relied  on  by  the  applicants 
establish  the  general  proposition ;    and  I  hold  that  in  this  case  there 


356  POWERS  (Part  3 

was  no  gift  by  implication  to  the  children  of  Emily  Mary  Slade  in  de- 
fault of  appointment  by  her  husband.^ 

B  See  Rogers  v.  Rogers,  2  Head  (Teun.)  660  (1850) ;  McGaughey's  Adm'r  v. 
Henry,  15  B.  Mon.  (Ky.)  383  (1854) ;  Smith  v.  Floyd,  140  N.  Y.  337,  35  N.  E.  606 
(1893) ;    Milhollen's  Adm'r  v.  Rice,  13  W.  Va.  510,  543,  566  (1878). 

On  Lapsed  Appointments. — See  Chamberlain  v.  Hutchinson.  22  Beav.  444 
(1856) ;  Brickenden  v.  Williams,  L.  R.  7  Eq.  310  (1S69) ;  In  re  A'an  Hagan,  L. 
R.  16  Ch.  Dlv.  18  (1880);  In  re  Marten,  [1902]  1  Ch.  314;  In  re  Thurston, 
32  Ch.  Div.  508  (1886) ;    In  re  Davies'  Trusts,  L.  R.  13  Eq.  163  (1871). 

On  Effect  of  a  Residuary  Appointment  upon  the  Subject-Matter  of  a 
Lapsed  Appointment. — See  In  re  Harrie's  Trusts,  H.  R.  V.  Johns.  199  (1859), 
where  out  of  a  fund  slightly  exceeding  £5,000  the  donee  appointed  £1,000  to 
each  of  four  daughters,  and  the  residue  to  five  sons  equally,  the  sons  took 
any  amount  which  lapsed  by  the  death  of  a  daughter  in  the  life  time  of  the 
donee. 

In  Eales  v.  Drake.  L,  R.  1  Ch.  D.  217,  Jessel,  M.  R.,  said:  "The  case  is 
this.  A  testator,  having  power  to  appoint  £7,000  by  will,  thinks  he  has  power 
to  appoint  £10,000 ;  and  accordingly  makes  a  will  appointing  sums  of  £1,995, 
£4.000,  £4,000,  and  £5.  If  nothing  more  had  happened  it  is  quite  clear  that 
all  these  gifts  must  have  abated,  because  there  is  not  enough  to  pay  the  be- 
quests in  full.  But  one  of  the  appointees  has  died,  which  augments  the 
fund,  exactly  in  the  same  way  as  if  the  testator  had  given  pecuniary  leg- 
acies of  greater  amount  than  his  whole  personal  estatei  and  then  one  of 
these  legatees  had  died.  In  that  case  the  personal  estate  would  have  been 
augmented  for  the  benefit  of  the  other  legatees,  and  the  appointees  here  are 
in  the  same  position." 


Ch.  5)  APPOINTED    PROPERTY    AS    ASSETS  357 

CHAPTER  V 
APPOINTED  PROPERTY  AS  ASSETS 


CLAPP  V.  INGRAHAM. 
(Supreme  Judicial  Court  of  Massachusetts,  1879.    126  Mass.  200.) 

Bill  in  equity,  filed  April  21,  1876,  by  the  executor  of  the  will  of 
Caroline  A.  Ingraham,  against  the  children  of  the  testatrix,  and 
her  creditors,  for  instructions,  alleging  that  on  Januar}^  1,  1828,  the 
IMassachusetts  Hospital  Life  Insurance  Company  received  from  Jos- 
eph Head,  trustee  of  Caroline  A.  Ingraham,  wife  of  Daniel  G.  Ingra- 
ham, the  sum  of  $3000,  and  executed  to  him  an  instrument  in  writ- 
ing, whereby  they  promised  and  agreed  with  him,  his  executors  and 
adfninistrators,  to  invest  the  same,  and  to  pay  the  income  thereof  quar- 
terly to  Mrs.  Ingraham,  "during  the  natural  life  of  the  said  Caroline, 
upon  her  separate  order  and  receipt,  to~Be  date'd'^on  or  subsequent  to 
the  several  days  on  which  the  said  several  payments  shall  fall  due ; 
for  her  separate  use,  free  from  the  debts,  control  or  interference  of 
any  husband  she  now  has,  or  may  hereafter  have ;  which  annuity 
and  principal  sum  are  both  hereby  declared  to  be  inalienable  by  the 
respective  grantees  thereof;"  and  further  agreed  with  the  said  trus- 
tee, his  executors  and  administrators,  "that,  in  sixty  days  after  proof 
of  the  decease  of  the  said  Caroline,  they  will  assign,  transfer  and 
pay  the  amount  of  the  aforesaid  principal  sum  (or  such  part  thereof 
as  shall  not  have  been  lost  by  bad  debts  or  otherwise,  without  the 
actual  fault  of  said  company  or  their  serv-ants),  and  all  interest  then 
due  thereon  at  the  time  of  her  death,  in  real  estate,  stocks,  notes,  bonds 
and  mortgages,  belonging  to  said  company,  all,  any  or  either  of  them, 
at  the  pleasure  and  discretion  of  the  directors,  at  the  prices  at  which 
the  same  respectively  shall  stand  charged  in  the  books  of  the  com- 
pany at  the  decease  of  said  Caroline,  in  the  way  and  manner  pro- 
vided in  said  extract  from  said  article,  to  her  executors  or  admin- 
istrators in  trust,  and  for  the  special  use  and  benefit  of  such  persQii 
or"^efsons  as  the  said  Caroline  by  her  last  will  and  testament,  or  any 
revocable  appointment  in  nature  thereof,  may  direct;  and  if  no  such 
willand  appointment  be  made,  then  to  such  person  or  persons  as  may 
be  her  heirs  at  lavy." 

The  bill  further  alleged,  that  Caroline  A.  Ingraham  died  on  lan- 
uary  20,  1876,  leaving  a  will,  dated  October  16,  1871,  which  was  duly 
admitted  to  probate,  appointing  the  plaintiff  her  executor,  and  con- 
taining the  following  clause:  "Indirect  my  said  executor  to  receive 
from  the  Massachusetts  Hospital  Life  Insurance  Company  the  sum 


358  POWERS  (Part  3 

of  three  thousand  dollars  and  all  interest  and  accumulations  thereon,  or 
the^'real  estate,  stocks,  notes,  bonds,  and  mortgages  in  lieu  of  said  sum 
with  interest  and  accumulations,  which  by  the  terms  of  a  contract  in 
writing  between  said  company  and  Joseph  Head,  trustee,  executed 
the  first  day  of  January,  one  thousand  eight  hundred  and  twenty- 
eight,  the  said  company  agrees  to  assign,  transfer  and  pay  to  my  ex- 
ecutors or  administrators  in  sixty  days  after  proof  of  my  decease ; 
and  out  of  the  money  or  other  property  received  from  said  company, 
I  direct  my  said  executor  to  have  and  keep,  for  his  own  use  and  bene- 
fit, the  sum  of  four  hundred  dollars ;  and  to  assign,  transfer  and  pay 
over  all  the  remainder  of  the  money,  or  other  property  received  from 
sai3~company,  after  deducting  said  sum  for  his  own  use  and  benefit, 
to  my  children  and  the  issue  of  any  deceased  child  or  children  by  right 
of  representation  in  equal  shares." 

The  bill  further  alleged,  that  the  plaintiff  had  received  from  said 
company  the  sum  of  $3000,  and  that,  after  dihgent  search  and  in- 
quiry, no  other  property  of  the  testatrix  had  come  to  his  possession  or 
knowledge ;  that  the  testatrix  left  two  children  surviving  her,  who 
contended  that  they  were  entitled  to  receive  the  whole  of  the  sum 
remaining  in  the  plaintiff's  hands  after  deducting  the  sum  of  $400; 
that  the  testatrix  left  debts  to  a  large  amount,  and  that  the  creditors 
contended  that  said  sum  was  liable,  in  the  plaintiff's  hands,  as  exec- 
utor, for  the  payment  of  such  debts. 

The  children  of  the  testatrix  and  certain  of  the  creditors  filed  an- 
swers, admitting  the  allegations  of  the  bill,  and  setting  up  their  respec- 
tive claims ;  and  the  case  was  heard  by  ]\Iorton,  J.,  upon  the  bill  and 
answers,  and  reserved  for  the  consideration  of  the  full  court. 

Gray,  C.  J.  It  was  settled  in  the  English  Court  of  Chancery,  before 
the  middle  of  the  last  century,  that  where  a  person  has  a  general 
power  of  appointment,  either  by  deed  or  by  will,  and  'execute5_this 
power,  the  property  appointed  is  deemed  in  equity  part  of  his  assets, 
and"suTDject  to  the  demands  of  his  creditors  in  preference  to  the  claims 
of  his  voluntary  appointees  or  legatees.  The  rule  perhaps  had  its 
origin  in  a  decree  of  Lord  Somers,  affirmed  by  the  House  of  Lords, 
in  a  case  in  which  the  person  executing  the  power  had  in  effect  re^ 
served  the  power  to  himself  in  granting  away  the  estate.  Thompson 
V.  Towne^  Prec.  Ch.  52;  s.  c.  2  Vern.  319.  But  Lord  Hardwicke  re- 
peatedly applied  it  to  cases  of  the  execution  of  a  geiieral  power  of  ap- 
pointment by  will  of  property  of  which  the  donee  had  never  had  ^ny 
ownership"  or  control  during  his  life;  and,  while  recognizing  the  log- 
ical difficulty  that  the  power,  when  executed,  took  effect  as  an  ap- 
pointment, not  of  the  testator's  own  assets,  but  of  the  estate  of  the 
doner  of  the  power,  said  that  the  previous  cases  before  Lord  Talbot 
and  himself  (of  which  very  meagre  and  imperfect  reports  have  come 
down  to  us)  had  established  the  doctrine,  that  when  there  was  a  gen- 
eral power  of  appointment,   which  it  was  absolutely  in  the  donee's 


Ch.  5)  APrOINTED    PROPERTY    AS    ASSETS  359 

pleasure  to  execute  or  not,  he  might  do  it  for  any  purpose  whatever, 
and  might  appoint  the  money  to  be  paid  to  his  executors  if  he  pleased, 
and,  if  he  executed  it  voluntarily  and  without  consideration,  for  the 
benefit  of  third  persons,  the  money  should  be  considered  part  of  his 
assets,  and  his  creditors  should  have  the  benefit  of  it.  Townshend  v. 
Windham,  2  Ves.  Sen.  1,  9,  10;  Ex  parte  Caswell,  1  Atk.  559.  560; 
Bainton  v.  Ward,  7  Ves.  503,  note ;  s.  c.  cited  2  Ves.  Sen.  2,  and  Belt's 
Supplt.  243;  2  Atk.  172;  Pack  v.  Bathurst.  3  Atk.  269.  The  doc- 
trine has  been  upheld  to  the  full  extent  in  England  ever  since.  Chance 
on  Powers,  c.  15,  §  2;  2  Sugden  on  Powers  (7th  Ed.)  27;  Fleming 
v.  Buchanan,  3  De  G.,  M.  &  G.  976.^ 

Although  the  soundness  of  the  reasons  on  which  the  doctrine  rests 
has  been  impugned  iJy  Chief  "Justice  Gibson,  arguendo,  and  doubte-d 
by~Mr.  Justice  Story  in  his  Commentaries,-  the  doctrine  is  stated  both 
by  Judge  Story  and  by  Chancellor  Kent  as  well  ^  settled ;  and  it  has 
been  ahirmed  by  the  liigliest  court  of  New' Hampshire,  in  a  very  able 
judgment,  delivered  by  Chief  Justice  Parker,  and  applied  to  a  case 
in  which  a  testator  devised  property  in  trust  to  pay  such  part  of  the 
income  as  the  trustees  should  think  proper  to  his  son  for  life,  and, 
after  the  son's  death,  to  make  over  the  principal,  with  any  accumulated 
income,  to  such  persons  as  the  son  should  by  will  direct.  Common- 
wealth V.  Duffield,  12  Pa.  277,  279-281 ;  Story,  Eq.  Jur.  §  176,  and 
note;  4  Kent,  Com.  339,  340;  Johnson  v.  Gushing,  15  N.  H.  298,  41 
Am.  Dec.  694. 

A  doctrine  so  just  and  equitable  in  its  operation,  clearly  established 
by  tKe  laws  of  England  before  uur  Revolution,  and  supported  by  such 
a  weight  of  authority,  cannot  be  set  aside  by  a  court  of  chancery,  be- 
cause of  doubts  of  the  technical  soundness  of  the  reasons  on  which  it 
was*^originally  established.  It  is  true  that,  as  the  rights  of  the  cred- 
itors could  only  be  enforced  in  a  court  of  chancery,  they  were  rem- 
ediless so  long  as  no  adequate  equity  jurisdiction  existed  in  this  Com- 
monwealth. Prescott  V.  Tarbell,  1  Mass.  204.  But  such  a  considera- 
tion affects  the  remedy  only,  and  not  the  right,  and  affords  no  reason 
for  denying  the  right  now  that  this  court,  sitting  in  equity,  has  been 

,1  Accord:    Edie  v.  Babiii^on,  .3  Tr.  Ch.  5GS. 

The  property  appointed  by  will  is  not  assets  for  the  creditors  of  the  de- 
ceased until  tile  property  to  which  the  deceased  was  entitled  has  been. ex- 
hausted. "T*t^mtirsrTr*nphnTinr!.  :',  IV  (t..  M.  &i  0.  OTG;  Patterson  v.  Law- 
rence,  bfli  Ga.  703,  70.^.  10  S.  i:.  :;.".-,  7  I..  U.  A.  14:j. 

Nor  does  the  aiiiii>iiitnipnt  iiinii  r  a  ltciu  lal  testamentary  pqwer_j.bate_witli 
legates  payable  <ml  i>f  tlic  cstntc  nf  tlir  testator.  "White  v.  5Ijiss.  Tnsf.  of 
T^ech.,  171  ^fass.  .^4,  0(i,  .jO  X.  E.  .^l•_^ 

If  no  npptiintnient  is  made,  the  proptM-ty  siili.iccr  to  tlic  ]i(i\vcr  is  not 
asse^!rTiT  III.'  donee  tor  his  cTprtltors.  even  where  the  power  is  Lrt'iM-ral  to  ap- 
poiiimv'aeen  or  will.  TToInies  v.  Couhill,  7  Ves.  40!);  lli  V.s.  I'rx;.  iM  |  ;  (Oilman 
V.  i^Whrtlff  m.  144,  140;  .Tones  v.  Clifton,  101  U.  S.  2L'5,  L'.".  L.  Kd.  '.mis;  Ryan 
V.  Mahan,  20  R.  I.  417,  39  Atl.  893, 

-  See,  also,  Humphrey  v.  Cami)l)ell.  59  S.  C.  39.  45,  37  S.  E.  20 ;  ^YaIes* 
Adm'r  v.  Bowdish's  Ex'r,  01  Vt.  23,  33,  17  Atl.  1000,  4  L.  R.  A.  819. 


3G0  POWERS  (Part  3 

vested  by  the  Legislature  with  ample  powers  to  maintain  and  protect 
it.  Gen.  Sts.  c.  113,  §  2;  Rogers  v.  Ward,  8  Allen,  387,  390,  85  Am. 
Dec.   710. 

By  the  instrument  of  trust  in  the  case  before  us,  an  annuity  was 
payable  quarterly  to  Mrs.  Ingraham  during  her  life,  and  the  principal 
after  her  death  to  her  executor  or  administrator  in  trust  and  for  the 
special  use  and  benefit  of  such  persons  as  she  by  her  last  will,  or  by 
any  revocable  appointment  in  the  nature  thereof,  might  direct,  and  if 
no  such  will  or  appointment  should  be  made,  then  to  her  heirs  at 
law.  The  only  restrictions  expressed  are,  that  the  annuity  during  her 
life  is  to  her  separate  use,  free  from  debts  or  control  of  her  husband, 
and  each  instalment  tliereof  is  to  be  paid  upon  her  order  when  or 
after  it  has  fallen  due,  so  that  she  would  have  no  right  to  assign  it  by 
way  of  anticipation,  Perkins  v.  Hays,  3  Gray,  405 ;  and  that  the  an- 
nuity and  the  principal  are  both  declared  to  be  "inalienable  by  the 
respective  grantees  thereof," — which  clearly  has  no  application  to  the 
general  power  of  appointment,  conferred  upon  her  by  the  express 
terms  of  the  trust,  to  dispose  of  the  principal,  after  her  death,  by 
will  or  testamentary  instrument  in  the  nature  thereof ;  and,  she  hav- 
ing exercised  the  dominion  so  granted  to  her,  the  property  is  thus 
brought  within  the  equitable  doctrine  which  makes  it  subject  to  her 
debts. 

We  are  aware  that  it  has  been  held  by  Vice  Chancellor  Kindersley, 
and  by  Lord  Romilly,  M.  R.,  that  the  doctrine  does  not  extend  to  the 
case  of  the  execution  of  a  general  power  by  a  married  woman,  without 
fraud.  Vaughn  v.  Vanderstegen,  2  Drew.  165,  363 ;  ^  Blatchford 
V.  WooUey,  2  Dr.  &  Sm.  204;  Hobday  v.  Peters,  28  Beav.  354;  Shat- 
tock  V.  Shattock,  L.  R.  2  Eq.  182;  s.  c.  35  Beav.  489.  We  need  not 
consider  whether  those  cases  were  well  decided,  or  are  applicable 'in 
this  Commonwealth,  where,  by  statute,  every  married  woman  has 
long  been  liable  to  be  sued,  and  her  property  taken  on  execution,  upon 
contracts  made  by  her  for  her  own  benefit,  and,  since  1874,  upon  all 
her  contracts  with  any  person  but  her  husband.  Gen.  Sts.  c.  108,  §§  1, 
3;  St.  1874,  c.  184;  Willard  v.  Eastham,  15  Gray,  328,  334,  77  Am. 
Dec.  366 ;  Major  v.  Holmes,  124  Mass.  108.  It  is  quite  clear  that,  even 
in  England,  all  restrictions  on  her  capacity  and  liability  would  terminate 
with  her  coverture.  Tullett  v.  Armstrong,  1  Beav.  1,  32,  and  4  Myl.  & 
Cr.  377,  395  et  seq.  And  in  the  present  case  it  does  not  appear,  and 
has  not  been  contended,  that  Mrs.  Ingraham  continued  to  be  a  mar- 
ried woman  at  the  time  of  contracting  the  debts  in  question,  or  of  exer- 
cising the  power. 

In  Nichols  V.  Eaton,  91  U.  S.  716,  23  L.  Ed.  254,  and  in  Durant 
v.  Massachusetts  Hospital  Life  Ins.  Co.,  2  Low.  575,  Fed.  Cas.  No. 
4,188,  the  settlement  differed  from  that  before  us  in  expressly  provid- 
ing that  the  property  should  not  be  subject  to  the  debts  of  the  cestui 

3  Contra,  Godfrey  v.  Harben,  13  Cli.  Div.  21G,  221. 


Ch.  5)  APPOINTED    PROPERTY    AS    ASSETS  3G1 

que  trust,  and  in  giving  no  general  power  of  appointment ;    and  there 
is  nothing  in  the  decision  or  opinion,  in  either  of  those  cases,  that  is 
adverse  to  the  claims  of  creditors  in  the  case  at  bar. 
Decree  for  the  creditors. 


BEYFUS  V.  LAWLEY. 

(House  of  Lords.     L.  R.  [190:^]  App.  Gas.  411.) 

The  Hon.  F.  C.  Lawley  under  the  will  of  Lady  A\^enlock  had  a  gen- 
eral  power_tg_appoint  by  will  £10,000  w-hich  in  default  of  appointixient 
was  to  go  as  part  of  her  residuary  estate.  By  a  mortgage  of  April 
7,  1892,  to  secure  a  loan  of  ilOOO  and  interest  he  covenanted  that  he 
would  immediately  after  the  execution  thereof  sign  his  will  of  even 
date  already  prepared,  whereby  in  exercise  of  the  general  power  under 
Lady  Wenlock's  will  he  appointed  that  the  trustees  of  her  will  should 
stand  possessed  of  the  £10,000  and  the  investments  representing  it,  upon 
trust  to~pay"tb  the  mortgagee  thereout,  in  preference  and  priority  to  all 
other  payments,  the  £1000  and  interest,  and  that  he  would  not  revoke 
or  alter  his  will  without  the  consent  of  the  mortgagee.  The  same  day 
he  executed  his  will  containing  the  above  provisions  and  stating  that  it 
was  his  wish  that  the  loan  should  be  a  first  charge  on  the  £10,000.  On 
his  death  in  1901  the  £1000  with  interest  was  still  due.  The  question 
then  arose  in  an  administration  action  whether  the  executors  of  the  de- 
ceased mortgagee  were  entitled  to  priority  as  to  the  trust  fund  over 
other  creditors  of  I\Ir.  Lawley.  Joyce,  J.,  held  that  they  had  not  pri- 
ority, and  this  decision  was  affirmed  by  the  Court  of  Appeal  (Vaughan 
Wifliams,  Stirling,  and  Cozens-Hardy,  L.  ]].).     [1902]  2  Ch.  799. 

The  mortgagee's  executors  appealed. 

Earl  of  Halsbury,  L.  C.  I\Iy  Lords,  your  Lordships  have  listened 
to  a  very  protracted  argument  in  this  case,  and  the  only  answer  I  have 
to  give  to  that  argument  is  that  whatever'merits  it  might  have  had  half 
a  century  ago,  it  is  too  late  now.  The  language  which  was  used  by 
Knight  Bruce,  L.  J.,  in  Fleming  v.  Buchanan,  3  D.  M.  &  G.  976,  980,"' 
is  in  accordance  with  the  opinions  delivered  by  each  of  the  tliree  learned 
Lords  Justices  of  Appeal,  and  beyond  some  abstract  reasoning  which, 
as  it  appears  to  me,  would  get  rid  of  the  rule  altogether,  I  have  seen 
no  reason  to  think  that  the  judgment  of  the  Court  of  Appeal  is  wrong. 

I  content  myself  with  saying  tliat  in  view  of  that  language  of  Knight 

4  This  language  is  as  follows :  "On  whatever  grounds  it  was  originally 
so  held,  it  is  and  has  for  a  long  time  been  the  settled  law  of  the  country, 
that  if  a  man  having  a  power,  and  a  power  only,  over  personal  estate  to 
appoint  it  as  he  will,  exercises  the  power  by  a  testamentary  appointment,  the 
property  becomes  subject  in  a  certain  order  and  manner  to  the  payment  of 
his  debts,  whatever  may  be  the  intention  or  absence  of  intention  upon  his 
part.  Not  only  in  point  of  principle  and  reason,  but  of  precedent  and  au- 
thority, I  apprehend  that  the  same  rule  applies  to  real  estate  where  it  is 
subject  to  a  general  power  exercised  by  will." 


362  POWERS  (Part  3 

Bruce,  L.  J.,  which  has  not  been  challenged  for  half  a  century,  this  ap- 
peal against  the  decision  of  the  Court  of  Appeal  is  hopelessly  unargu- 
able, and  therefore  I  invite  your  Lordships  to  dismiss  the  appeal  with 
costs. 

Lord  Macnaghten.  My  Lords,  I  agree.  I  am  of  opinion  that  tlie 
passage  from  the  judgment  of  Knight  Bruce,  L.  J.,  in  Fleming  v. 
Buchanan,  3  D.  M.  &  G.  976,  980,  which  has  been  so  often  quoted  in 
this  case,  is  an  accurate  statement  of  the  law  on  the  subject,  and  that 
it  does  not  require  any  qualification  as  Vaughan  Williams  L.  J.  seems 
to  suggest.  Whatever  the  origin  of  the  rule  may  have  been,  it  is  in  my 
opinion  much  too  late  to  question  it  now  or  to  attempt  to  cut  it  down. 

Lord  LindlEy.  My  Lords,  I  am  of  the  same  opinion.  The  doctrine 
that  an  appointee  under  a  power  derives  title  from  the  instrument  con- 
ferring the  power  and  not  from  the  appointment  is  well  established ; 
but  a  qualification  or  exception  has  been  long  grafted  upon  it  and  is 
equally  well  established.  For  it  cannot  now  be  denied  that  property 
appointed  by  will  under  a  general  power  is  assets  for  payment  of  the 
debts  of  the  appointor,  and  is  not  regarded  as  property  of  the  donor  of 
the  power  distributable  by  the  donee  thereof. 

The  property  appointed  is  in  such  a  case  treated  as  assets  of  the 
testator  exercising  the  power,  and  the  assets  so  appointed  are  regard- 
ed as  property  bequeathed  by  him.^     When  I  say  assets  I  do  not  mean 

5  In  O'Qxa-dy  v.  ^Yilulot,  L.JR.  [1916]  A.  C.  2;]1,  tlie  donee  had  a  general 
testamentary  power  and  exerci>?ed  it.  The  property,  su'EjecrTo  the' power, 
was  not,  howe\  er,  neoded  for  the  payment  of  debts.  If  the  property  sub- 
ject to  the  power  passed  to  the  donee's  "executors  as  siich,"  the  death  ditty 
was  to  be  paid  by  the  donee's  residuary  legatee  out  of  the  general  assets 
belonging  to  the  donee.  If,  on  the  other  hand,  the  property  subject  to  the 
power  did  not  so  pass,  the  death  duty  was  payable  out  of  the  property  ap- 
pointed. Held:  The  appointed  property  did  not  pass  to  the  donee's  "ex- 
ecutor as  such:"  Lord  Buclrrtram-er,  L.  C,  said  (p;'24S):  " Property  subject 
to  a'  general  power  of  appointment  exercised  by  deed  or  will  could  be  made 
available  for  payment  of  the  testator's  debts  by  proceedings  instituted  in 
chancery.  It  was  considered  contrary  to  good  faith  to  permit  a  power  to 
he  exercised  in  favour  of  volunteers  so  as  to  defeat  the  creditors  of  the 
donee  of  the  power.  The  court  therefore  intercepted  the  fund — to  use  the 
language  of  Lord  Hardwicke,  'stopped  it  in  transitu" — and  either  by  regard- 
ing the  appointee  as  trustee  for  the  creditors,  or  by  virtue  of  saying  that 
in  the  circumstances  the  creditors  had  an  equity  against  the  fund,  caused 
it  to  be  applied  for  payment  of  the  debts;  but  the  fund  was  not  any  part 
of  the  estate  of  the  donee  of  the  power,  nor  was  it  anywhere  decided  that 
it  passed  to  the  executor." 

Lord  Sumner  said  (p.  270):  "*  *  *  How  and  in  what  sense  does  the 
subject  of  a  general  testamentary  power  pass  to  an  executor  on  the  ef- 
fectual exercise  of  the  power?  The  rule  first  appears  in  the  seventeenth 
century.  It  takes  shape  in  the  middle  of  the  eighteenth.  In  Lord  Town- 
shend  v.  "Windham  [2  Yes.  Sen.  1,  11]  Lord  Hardwicke  says  that  the  Courts 
'stop  in  transitu,  as  it  is  called,'  and  he  ai)pears  to  have  accepted  in  Trough- 
ton  V.  Troughton  [li  Atk.  (;.'>(>]  the  expi-ession  'the  Court  ought  to  intercept 
it  for  the  l)enefit  of  a  creditor.'  The  rule  arose  out  of  tenderness  for  credi- 
tors. 'It  would  be  a  strange  thing  if  volunteers  *  *  *  should  run  away 
with  the  whole,  and  that  creditors  for  a  valuable  consideration  should  sit 
down  by  the  loss  without  any  relief  in  this  court.'  I?ainton  v.  Ward  [2  Atk. 
172],  afterwards  affirmed  in  the  House  of  Lords.     See  Lassells  v.  Lord  Corn- 


Ch.  5)  APPOINTED    PROPERTY    AS    ASSETS  363 

general  assets,  but  assets  nevertheless  applicable  to  the  payment  of  the 
appointor's    debts   after    all  bis"  6\vh' property    has    been    exbausteH^.'" 
Again,   personal  property  appointed   by  will   under  a  general  power 
although  not  a  legacy  for  all  purposes  is  treated  as  personal  estate  be- 
queathed by  him. 

It  is  settled  that,  except  by  making  a  creditor  an  executor,  a  person 
disposing  of  his  own  property  by  will  cannot  by  his  will  prefer  one 

wallis  [2  Tern.  4(55].  Since  the  rijiht  to  exercise  a  power  is  not  property. 
e<iuity,  regardless  of  the  facts,  assumed  that  a  man  in  debt,  who  miglit  have 
used  the  power  to  pay  his  debts,  couhl  not  really  mean  to  exercise  it  so  as 
to  benefit  a  volunteer  and  leave  his  debts  unpaid.  Fundamentally  this  has 
nothing  to  do  with  executorship,  for,  provided  a  court  of  equity  sees  that 
the  creditors  are  paid  out  of  the  subject  of  the  jiower,  if  need  be,  the  ex- 
ecutor's position  is  at  most  ministerial.  He  may  be  no  more  than  a  neces- 
sary party.  The  theory  of  the  executor's  position  has  been  developed  in 
various  ways  since  Lord  Hardwicke's  time,  but  the  theories  are  so  discordant 
that,  with  all  humility,  I  think  them  confusing.  The  rule  now  is  that  tne 
trustees  of  the  fund  are  bound  to  pay  it  over  to  the  executor  whether  the 
appointor's  estate  is  indebted  or  not,  and  by  doing  so  they  discharge  them- 
selves (Hayes  v.  Oatley  [L.  R.  14  Eq.  1] ;  In  re  Hoskiu's  Trusts  [5  Ch.  D. 
2-2Q;  6  Ch.  D.  281]).  This  is  said  (In  re  Hadley,  f(1909)  1  Ch.  20.  30J)  to 
be  by  reason  of  the  probate  and  liecause  the  payee  is  executor.  By  exer- 
cising the  power  the  testator  has  been  thought  to  make  the  sulilect  of  the 
power  his  own  and  part  of  his  assets ;  hence  the  executor  is  entitled.  Hav- 
ing received  the  fund,  the  executor  is,  no  doubt,  accountable,  and  this  con- 
sideration apparently  led  to  the  opinion,  expressed  in  Hadley's  Case  [(11)09) 

1  Ch.  20,  30].  that  a  fund  of  personalty  appointed  by  will  under  a  general 
power  must  be  classed  as  legal  assets.  The  authorities  do  not  seem  to  have 
been  cited  on  that  occasion,  and  the  point  is  one  which  has  long  been  of 
diminishing  importance.  In  the  proper  sense  of  the  words  I  do  not  think 
that  this  opinion  can  be  regarded  as  correct.  I  cannot  find  that  evidence 
of  receipt  of  such  a  fund  has  ever  been  admitte<l  where,  in  an  action  at  law 
by  a  creditor,  an  executor  has  pleaded  plene  administravit.  and  issue  has 
been  joined  thereon,  or  that  an  executor  has  ever  been  allowed  to  exercise  liis 
right  of  retainer  against  it.  The  rule  is  a  rule  of  equity  and  applies  to  realty 
as  well  as  to  personalty,  while  an  executor  holds  a  common  law  office  and  at 
common  law  did  not  take  the  realty  of  his  testator.  Mr.  Joshua  Williams 
thought  that  the  fund  vested  in  the  executor,  which  is  inconsistent  with 
the  decision  in  Drake  v.  Attorney-General  [10  CI.  &  F.  257].  Again  it  was 
contended  (per  Wilde,  S.-G.,  arguendo)  in  Piatt  v.  Routh  [G  M.  &  W.  75(5 1 
that  e(|uity  by  implication  makes  the  donee  of  the  power  a  trustee  for  his 
creditors,  if  he  exercises  the  power  at  all.  This  suggestion  seems  to  have 
gone  no  further.  Leach,  A'.-C.  in  Jenuey  v.  Andicws  L<j  Madd.  264],  said 
that  the  apiiointee  was  trustee  for  the  creditors.  What  in  the  report  of  that 
case  seems  to  have  been  only  a  dictum  is  converted  by  Roniilly,  M.  R.,  into 
a  decision  in  Williams  v.  Lomas  [16  Beav.  1].  Nevertheless  it  is  the  execu- 
tor who  gets  the  money  and  pays  the  creditors.  The  appointee  does  not : 
he  takes  what  the  executor  has  left,  and  keeps  it.  The  now  appellant's 
argument  is.  following  the  view  which  Kekewich.  J.  (In  re  Treasure  [(1!K)0) 

2  Ch.  64S]),  took  of  In  re  Philbrick's  Settlement  [34  L.  J.  (Ch.)  36n1,  as 
extended  by  the  language  of  James,  L.  J.,  in  In  re  Hoskins  Tru.sts  [c'ch. 
D.  2S1,  283],  that  the  executor  becomes  a  trustee  of  the  fund  for  the  creditors^ 
but,  as  Buckley,  J.,  points  out  (In  re  :\loore  [(1901)  1  Ch.  691,  695|),  he 
only  becomes  trustee,  in  the  sense  of  trustee  of  the  fund  for  the  appointees, 
subject  to  "another  duty  which  the  trustee  of  the  fund  had  not,  namely,  the 
duty  before  he  hands  anything  to  the  appointees  to  take  the  whole  fund, 
or  as  nmch  as  is  necessary  to  satisfy  the  debts  of  his  testator.'  In  truth] 
as  nobody  appointed  the  executor  a  trustee,  as  the  original  tru.stees  of  the 
settlement  remain  su(h  till  they  have  got  rid  of  the  money  by  jiaying  it  to 
him,  and  as  the  whole  intention  of  the  appointor  was  toaiipoiut  so  as  to 


364  POWERS  (Part  3 

creditor  to  another  or  make  a  gift  by  will  payable  before  a  debt.  ^ 
covenant  to  bequeath  property  by  will  does  not  alter  the  character  of 
the^  property  bequeathed  in  accordance  with  the  covenant.  What  is  so 
bequeathed  is  still  a  gift  by  will  and  not  a  preferential  debt.  The  at- 
tempt to  confine  the  rule  to  volunteers  cannot,  I  think,  now  be  sup- 
ported when  speaking  of  powers  to  appoint  by  will.® 

The  order  of  the  Court  of  Appeals  affirmed  and  appeal  dismissed 
with  costs. 

pass  his  creditors  by,  I  tliink  this  theory  is  only  an  attempt  to  state  the 
worlving  rule  of  administration  in  terms  of  a  particular  and  inapplicable 
category  of  equity.  On  the  other  hand  the  executor  has  been  said  to  be  an 
appointee  of  the  fund  himself.  Here,  too,  I  think  the  same  observation  may 
be  made.  His  relation  to  the  appointed  fund  has  become  defined  in  a  series 
of  cases,  sometimes  casually  and  sometimes  anomalously.  He  is  the  proper 
person  to  receive  it ;  he  ought  to  apply  it,  so  far  as  may  be  necessary,  in 
due  order  of  administration,  and  in  a  court  of  equity  is  accountable  and  com- 
pellable to  do  so.  Clearly  he  is  entitled  to  possession  of  it  and  is  bound 
to  administer  it  in  the  course  of  his  executorship.  I  think  that  is  really 
all.  Be  the  theory  what  it  may,  surely  this  relation  to  the  appointed  fund 
cannot  be  correctly  described  as  a  passing  to  the  executor  as  such.  It  never 
became  bona  testatoris  in  any  real  sense ;  before  the  will  spoke  the  testaTor 
was  dead,  and  till  the  will  spoke  there  was  no  appointment.  The  distinc- 
tion between  a  will  as  a  testamentary  disposition  of  property  naming  an 
executor  as  the  legal  personal  representative  of  the  deceased,  on  the  one 
hand,  and  a  will  as  a  prescTibed  mode  of  exercising  a  power  with  an  ex- 
ecutor named  therein  only  to  effectuate  the  appointment,  on  the  other,  is  il- 
lustrated by  Tugman  v.  Hopkins  [4  Man.  &  G.  389] ;  and  see  In  re  Tom- 
linson  [(18S1)  6  P.  D.  209].  What  makes  him  executor,  entitled  to  what  had 
belonged  to  the  testator  in  his  lifetime,  is  the  testamentary  disposition, 
which  appoints  him.  What  makes  him  recijoient  of  the  appointed  fund  and 
administrator  of  it  is  the  control  which  courts  of  equity  have  exercised  over . 
funds  which  did  not  belong  to  the  testator  in  his  lifetime,  and  to  which  the 
will  gives  the  executor  no  title  at  all.  I  think  that  Lord  Hai'dwicke's  lan- 
guage, that  equity  intercepts  the  fund  or  stops  it  in  transitu,  is  much  the 
clearest  guide,  and  sufficiently  explains  what  is  a  rule  rather  than  a  prin- 
ciple. There  is  high  authority  for  this  view.  'In  favour  of  creditors,'  says 
Ix)rd  Thurlow  (Harrington  v.  Harte  [1  Cox,  lol]).  'this  court  would  arrest 
the  fund  in  transitu.'  'A  rule  of  equity,'  says  Lord  Abiuger,  'subjects  a 
fund  so  appointed  to  the  debts  of  the  appointor.'  Piatt  v.  Routh  [6  M.  &  W. 
756,  7S9].  It  is  'considered  as  part  of  the  estate  of  the  testator  at  the  time 
of  his  death.'  Lord  Townshend  v.  Windham  [2  Yes.  Sen.  1,  11].  It  is 
'considered  as  assets,  if  wanted.'  Grant,  M.  R.,  In  Daubeney  v.  Cockburn 
[1  ]\Ier.  626,  639].  And  'the  court  will  for  creditors  lay  hold  of  the  money 
when  it  is  appointed  for  a  volunteer.'  Holmes  v.  Coghill  [7  Ves.  499.  .508]. 
'Such  property  is  not  the  personal  or  real  estate  of  the  testator,'  'Sp;yiier, 
L.  J.;  it  is  resorted  to  in  aid  of  'the  testator's  estate  in  a  moi'c  accurate 
sense  of  the  word,'  Knight  Bruce,  L.  J.  (both  in  Fleming  v.  Buchanan  13 
D.  M.  &  G.  970,  979,  9S1]).  It  is  'treated  as  personal  estate  bequeathed  by 
the  testator.'  Lord  Lindley  in  Beyfus  v.  Lawley  [(1903)  A.  C.  411,  413].  By 
thus  'considering'  and  'treating'  it  as  what,  'in  a  more  accurate  sense,'  it  is 
not,  the  executor  is  made  the  recipient  of  the  fund.  It  is  only  by  the  will 
that  property  passes  to  the*executor  as  such." 

Tjord  Parmoor  dissented. 

See,  also.  Commonwealth  v.  Duffield,  12  Pa.  277  (1849). 

6  Patterson  v.  Lawrence,  83  Ga.  703,  10  S.  E.  355,  7  L.  R.  A.  143,  semble, 
that  the  execution  of  a  testamentary  power  to  validate  a  title  attempted  to 
be  conveyed  inter  vivos  is  an  execution  for  value,  and  hence  the  appointed 
property  was  not  assets  for  creditors. 


Ch.  6)  DEFECTIVE  EXECUTION  365 

CHAPTER  VI 
DEFECTIVE   EXECUTION 


SMITH  V.  ASHTON. 
(Court  of  Chancery,  1675.     1  Ch.  Cas.  263.) 

J.  S.,  seised  of  lands  in  two  counties,  conveyed  part  to  the  use  of 
himself  for  life,  with  remainder,  and  power  to  charge  the  lands  so  con- 
veyed, with  £500  by  deed  or  wilHn  writing  under  his  hand  and  seal. 
This  conveyance  was  voluntary,  and  without  valuable  consideration, 
and  after  bvjiis  last  will  in  writing,  not  se_al£d,  devised  the  £500  to  his^ 
younger  children,  in  whose  right  the  bill  is  exliibited  against  his  son 
and~heir  to  have  the  £500. 

Against  which  the  counsel  for  the  defendant  insisted,  that  the  law 
was  against  the  plaintiff;  and  both  parties  claiming  under  a  voluntar}' 
settlement,  and  the  same  consideration,  (viz.)  natural  affection,  there- 
fore he  that  hath  the  law  on  his  side  ought  not  to  be  charged  to  the 
younger  children. 

The  Lord  Keeper  took  time  to  deliberate,  and  now  decreed  the 
£500  though  the  will  was  not  under  seal,  and  the  _power  not  legally^ 
pursued.  He  cited  Prince  and  Chandler's  Case,  decreed  by  the  Lord 
Egerton,  where  there  was  a  power  to  make  leases  on  a  covenant  to 
stand  seised  to  uses,  on  consideration  of  natural  affection,  and  the 
lease  was  for  provision  for  younger  children. 

Decreed  good  against  the  heir,  for  two  reasons,  1st,  for  that  the 
law  was  not  then  adjudged  in  jMildmay's  Case.  2d.  Because  the  son 
did  claim  by  the  same  conveyance  by  which  the  power  was  limited. 
So  17  June,  8  Car,  the  jointure  of  the  Countess  of  Oxford  decreed 
good,  where  the  power  was  not  pursued;  yet  only  part  of  her  jointure 
depended  on  the  question. 

For  he  that  reserveth  such  a  power  under  circumstances,  they  are 
but  cautions  that  another  might  not  be  imposed,  or  made  without  hint. 
The  substantial  part  is  to  do  the  thing,  and  therefore  where  it  is  clear 
and  indubitable,  the  neglect  of  the  circumstances  shall  not  avoid  the 
act  in  equity;  possibly  when  from  home  or  sick  he  remembered  not 
the  circumstance  of  his  power;  and  the  powers  of  this  kind  have  a 
favorable  construction  in  law,  and  not  resembled  to  conditions,  which 
are  strictly  expounded ;  for  a  power  of  this  kind  may  be  executed 
by  part,  and  extinct  in  part,  and  stand  for  the  rest;  but  a  purchaser 
shall  defend  himself  in  such  case,  but  with  difference,  though  not  exe- 


366  POWERS  (Part  3 

cuted  according  to  the  circumstances ;  for  if  he  hath  notice  (quaere  if 
he  meant  of  the  original  conveyance  only,  or  of  the  ill  executed  es- 
taFe)  he  purchaseth  at  his  own  peril.  ^ 


TOLLET  V.  TOLLET. 

(Court  of  Chancery,  1728.     2  P.  Wms.  489.) 

The  husband  by  virtue  of  a  settlement  made  upon  him  by  an  ances- 
tor, was  tenant  for  life,  with  remainder  to  his  first.  Sec.  son  in  tail 
male,  with  a  power  to  the  husband  to  make  a  jointure  on  his  wdfe  by 
deed  under  his  hand  and  seal. 

The  husband  having  a  wife,  for  whom  he  had  made  no  provision, 
and  being  in  the  Isle  of  Man,  by  his  last  vyill  under  his  hand  and 
seal,  devised  part  of  his  lands  within  his  power  to_hiswife  for  her  life. 

Object.  This  conveyance  being  by  a  will,  is  not  warranted  by 
the  power  which  directs  that  it  should  be  by  deed,  and  a  will  is  a  vol- 
untary conveyance,~an3~therefore  not  to  be  aided  in  a  court  of  equity. 

Master  of  the;  Rolls  [Sir  Joseiti  Jekyll].  This  is  a  provision 
for  a  wife  who  had  none  before,  and  within  the  same  reason  as  a  pro- 
vision for  a  child  not  before  provided  for;    and  as  a  court  of  equity 

1  Sugden  on  Powers  (8th  Ed.)  ,  said: 

"Thus,  then,  the  jurisdiction  stands,  and  we  may  inquire  what  amounts 
to  such  a  consideration  as  will  enable  equity  to  interpose  its  aid  in  favor  of 
a  defective 'execution  of  a  power.  "^  ~ 

"ine  aid  ot  equity  tnen  will  be  afforded  to  a  purchaser  which  fpnn  vn- 
cludes^jUPaortgagee  imLL_aJl£saee.  And  even  where  an  estate  was,  by  a  mis- 
take in  law,  sold  under  a  power  by  a  stranger,  the  rule  was  supported,  in 
consequence  of  acquiescence  and  acts  by  the  cestuis  que  trast. 

"And  to  a  creditor. 

'The  like  aid  will  be  afforded  to  a  wife,  and  to  a  legitimate  child ;  for 
wives  and  children  are  in  some  degree  considered  as  creditors  by  nature ; 
and  although  to  constitute  a  valuable  consideration  for  a  settlement  on  a 
wife  or  child,  it  must  be  made  before  marriage,  yet  the  marriage  and  blood 
are  meritorious  considerations,  and  claim  the  aid  of  a  court  of  equity  in 
support  ot  a  defective  execution  of  a  power  in  their  favour,  although  the 
power   was   executed   after   the   marriage.     *     *     * 

"The  like  equity  is  extended  to  a  charity.  Lord  Northington  laid  it  down 
that  the  uniform  rule  of  the  court  before,  at.  and  after  the  statute  of  lOliza- 
beth,  was,  where  the  uses  are  chai'itable  and  the  person  has  in  himself  full 
power  to  convey,  to  aid  a  defective  conveyance  to  such  uses. 

"But  it  has  been  decided  that  a  defective  execution  of  a  power  by  a  wife 
cannot  be  aided  in  favour  of  her  husband ;  nor  can  a  disposition  by^jijiar- 
ried  woiBainir~conjunctioh  \vlfh  her  Tiusband,  without  the  solemnities  re- 
qiiTi-ed  by  the  power,  although  the  trustees  of  the  fund  act  upon  it,  he  sup- 
ported"  on  tne  ground  of  the  intention  and  the  power  to  do  the  act ;  for  the 
ceremonies  in  such  a  case  are  introduced  for  the  express  purpose  of  pro- 
tecting the  wife  against  the  husband,  and  are  matters  of  substance  and 
not  of  form. 

"Nor  is  the  equity  extended  to  a  natural  chiUl. 

"Nor,  as  it  has  at  length  been  deternnnen,  to  a  grandchild. 

"Neither  will  it  extend  to  a  father  or  motheTUxui  brptfi^  or  sister  even 
of  the  whole  blood,  much  less  of  the  haTT  blood,  uoL  to  jijoeiShew,  or  cOtrslfi". 

"And  u  foiliori,  it  cannot  be  afforded  to  a  mere  volunteer." 


Ch.  6)  DEFECTIVE  EXECUTION  367 

would,  had  this  been  the  case  of  a  copyhold  devised,  have  supplied  the 
want  of  a  surrender,  so  where  there  is  a  defective  execution  of  the 
power,  be  it  either  for  payment  of  debts  or  provision  for  a  wife,  or 
children  unprovided  for,  I  shall  equally  supply  any  defect  of  this 
nature :  the  difference  betwixt  a  non-execution  and  a  defective  execu- 
tion  of  a  power;  the  latter  wilFalways  be  aided  in  equity  under  the 
circumstances  mentioned,  it  being  the  duty  of  every  man  to  pay  his 
debts,  and  a  husband  or  father  to  provide  for  his  wife  or  child.  But 
this  court  will  not  help  the  non-execution  of  a  power,  since  it  is 
against  the  nature  of  a  power,  which  is  left  to  the  free  will  and  elec- 
tion of  the  party  whether  to  execute  or  not,  for  which  reason  equity 
will  not  say  he  shall  execute  it,  or  do  that  for  him  which  he  does  not 
think  fit  to  do  himself. 

And  in  this  case,  the  legal  estate  being  in  trustees,  they  were  de- 
creed to  convey  an  estate  to  the  widow  for  life  in  the  lands  devised  to 
her  by  her  husband's  will.^ 

2  Accord:   Sneed  v.  Sneed,  Auibl.  G4  (1747). 

In  Cooper  v.  Martin,  3  Ch.  47.  58,  Sir  .John  Rolt,  L.  J.,  said:  "Now,  was 
it  not  a  material  part  of  the  testators  intention,  as  declared  in  this  case, 
tliat  the  power  shonld  be  exercised,  as  he  has  said  by  deed  or  sealed  instru- 
ment in  writing,  and  not  by  will?  In  tlie  same  will,  in  creating  a  power  over 
otlier  subjects,  the  £70,000  and  the  Regent's  Park  gi'ound  rents,  the  testator 
has  said  tliat  it  might  be  exercised  by  deed  or  instrument  in  writing  (omit- 
ting here  tlie  word  "sealed")  or  by  will ;  {>nd  again,  if  there  should  be  no 
children,  the  general  iwwer  given  to  the  widow  over  the  same  properties  was 
to  be  exercised  by  will  only.  Why  these  distinctions?  It  could  not  have 
been  accidental,  the  proviso  also  that  the  power  should  be  exercised  before 
the  youngest  child  attained  twenty-five  pointing  in  the  same  direction.  On 
the  whole  of  the  will,  it  appears  to  me  plain  that  the  distinction  was  adopted 
because  the  testator  thought  it  material  that  the  power  over  the  Pain's  Hill 
estate,  and  over  the  residue,  should  not  be  exercised  either  by  will  or  by  an 
unsealed   instrument." 

In  Reid  v.  Shergold,  10  Ves.  Jr.  370,  the  devisee  having  a  life  estate  in 
copyhold  with  the  power  of  appointment  by  will  sold  and  surrendered  the 
estate  to  a  purchaser  and  then  died  without  appointing.  Lord  Eldon  deter- 
mined that  equity  could  give  no  aid  to  the  purchaser  as  on  a  defective  ap- 
pointment. He  said:  "The  testator  did  not  mean,  that  she  should  so  ex- 
ecute her  power.  He  intended,  that  she  should  give  by  will,  or  not  at  all ; 
and  it  is  imi)ossible  to  hold,  that  the  execution  of  an  instrument,  or  deivl, 
which,  if  it  availed  to  any  purpose,  must  avail  to  the  destruction  of  that 
power  the  testator  meant  to  remain  capable  of  execution  to  the  moment  of 
her  death,  can  be  considered  in  equity  an  attempt  in  or  towards  the  ex- 
ecution of  the  power.     That  therefore  will  not  do." 


368  POWERS  (Part  3 

SERGESON  V.  SEALEY. 

(Court  of  Chancery,  1742.     2  Atk.  412.) 

William  Pitt,^  the  son  of  Samuel  Pitt,  married  Mrs.  Speke,  and  by 
the  marriage  articles  it  was  covenanted  that  if  there  should  be  one  son 
only,  and  no  younger  children,  and  the  wife  should  survive  the  hus- 
bandT^at  she  should  have  the  power  of  disposing  of  £4000  by  deed 
or  will  executed  in  thejresenc£  of  three  wifnp9':;ps  tn^anj  pprc;nn  she 
should  appoint,_and  this  sum  was  to  be  a  charge  upon  the  real  es- 
tate  of  the  husband. 

Mr.  William  Pitt  died,  leaving  only  one  son,  Samuel  Pitt  the  young- 
er, who  lived  to  be  only  nineteen,  and  dying  before  he  came  of  age, 
his  real  estate  descended  upon  Mr.  Sergeson,  the  plaintiff's  wife,  who 
is  great-niece  of  Samuel  the  elder,  and  heir-at-law  to  him,  and  to 
William  Pitt  his  son,  and  to  the  infant  Samuel  the  younger,  the  grand- 
son of  Samuel  the  elder. 

After  the  death  of  Mr.  William  Pitt,  Mr.  Speke  marries  the  wid- 
ow; but  before  her  second  marriage,  she,  by^rticles  executed  in  the 
prpgpnre    nf    two    witnp5;sp';    nn1y_t__ajpprQt<;    the   cnm    of    £2000    OUt    of 

the  £4000  to  be  jor  the  use  and  benefit  of  her  intended  husband,  dur- 
ing  the  coverture^  and  after  her  death  to  her  son  _Samuel  Fitt. 

"The  other_£2000  jhe  makes  a^Yolmitary -disposition  of  by  will,  but 
did  no^t^xecute  it  injh^ jpresence j)fjthree  witnesses. 

Lord  ChancELIvOR  [HardwickD].  The  question  is,  whether  the 
articles  entered  into  upon  Mrs.  Speke's  marriage  with  Mr.  Speke 
amount  to  an  appointment  within  the  power? 

I  am  of  opinion,  that  it  is  a  good  appointment  of  £2000  for  the 
benefit  of  Mr.  Speke ;  and  notwithstanding  it  is  insisted  that  it  is  a 
defective  appointment,  because  there  are  only  two  witnesses,*  yet  this 
court  will  supply  the  defect,  where  it  is  executed  for  a  valuable  con- 
sideration,  much  more  where  it  is  an  execution  of  a  trust  only;  and 
though  the  appointment  is  macciirately  expressed,  and  in  an^informal 
manner,  it  shall  still  amount  to  a  grant  of  the  £2000  to  Mr.  Speke ;  and 
if  it  amounts  to  a  grant,  what  is  the  effect?  Why,  that  Mr.  Speke 
shall  have  the  whole  use  and  benefit  of  it  during  the  coverture ;  and 
falls  exactly  within  the  reason  of  Lady  Coventry's  Case  [2  P.  Wms. 
222]  ;  where  a  tenant  for  life,  with  a  power  to  make  a  jointure,  cove- 
nants, for  a  valuable  consideration,  to  execute  his  power,  this  court 

3  Part  of  tlie  case,  relating  to  different  points,  is  omitted. 

4  So  wliere  the  power  is  to  appoint  by  will  attested  by  three  witnesses, 
and  the  appointment  is  by  will  attested  by  two  witnesses,  there  is  a  sub- 
stantial execution,  and  equity  will,  if  the  other  requirements  are  fullilled, 
aid  it.  Wilkes  v.  Holmes,  9  Mod.  4S5  (1752) ;  Morse  v.  Martin,  34  Beav.  500 
(1SG5).     (Appointment  attested  by  one  witness  instead  of  two.) 

But  by  the  Wills  Act.  St.  7  Wm.  IV  and  1  Vict.  c.  20,  §  10,  no_appoint- 
ment  made  by  will  in  the  exercise  of  ttny  power  is  valid^unless  executei3Tn 
the^manner  requlfed^r  the-executtoiiiofa.  wTIL  ~  " 


Ch.  6)  DEFECTIVE  EXECUTION  369 

will  supply  a  defective  execution,  or  a  non-execution  against  the  re- 
mainder-man.^ 

The  next  question  is,  as  to  the^  remaining  £2000. 

This  was  n£t__an  appointment  |^or_a  valuable  consideration,  but  only 
a  voluntary  disposition,  and  therefore  as  the  will  under  which  the 
£2000  is  given  was  not  executed  in  the  presence  of  three  witnesses,  it 
has  not  pursued  the  power,  and  consequently  was  a  void  appointment, 
so  that  this  £2000  sunk  in  the  infant's  real  estate. 


BLORE  V.  SUTTON. 
(Court  of  Chancery,  1817.    3  Mer.  237.) 

The  Master  of  the  Rolls  [Sir  William  Grant].®  This  is  a 
bill  for  the  s£ecific  perforrnance  of  an  agreement  to  grant  a  lease. 
The  agreement  is  alleged  to  have  been  entered  into  with  the  agent  of 
the  late  Countess  of  Bath,  who  was  tenant  for  life,  with  a  power  of 
grkntingJgaSlilmJthe^  manner  and  on  tlieterms  specifiedlh  the  power; 
and  thequestion  is,  whether  there  be  ally  such  agfeEiiieiiL  in  this  case 
as  is  binding  upon  the  remainder-man,  the  defendant  Sir  Richard  Sut- 
ton. 

It  appears  to  me  that  there  is  no  sufficient  agreement  in  writing; 
first,  because  Charles  Noble,  who  signs  his  mitials  to  the  memorarr- 
dum  written  on  the  plan,  is  neither  alleged  by  the  bill,  nor  proved  by 
the  evidence,  to  have  been  the  authorized  agent  of  Lady  Bath ;  sec- 
ondly, because  the  memorandum  does  not  contain  some  of  the  ma- 
terial terms  of  a  building  lease,  which  this  was.  It  merely  specifies  flie 
rent,  and~the  number  of  years.  It  does  not  even  specify  the  com- 
mencement of  the  lease.  By  the  parol  evidence,  indeed,  it  is  said,  that 
it  was  to  be  from  the  expiration  of  a  subsisting  lease.  But  then  the 
whole  agreement  is  not  in  writing. 

It  was  insisted,  however,  that  there  is  a  parol  agreement,  in  part 
executed ;  for  the  plaintiff  has  expended  large  sums  in  building  upon 
the  premises,  partly  in  Lady  Bath's  lifetime,  but  principally  since  her 
death.  The  agreement,  it  is  said,  is  therefore  binding  on  the  remain- 
derman. It  is  rather  difficultto_sav,  that  there  is  even  a  parol  agree- 
ment bv_^jl^uthorized  agenLof  Lady  Bath.  For  the  evidence  is,  that 
N\^i)le,  by  the  direction  and  with  the  privity  of  Mr.  Cockerell,  who 
was  Lady  Bath's  agent,  did  make  a  verbal  agreement  with  the  plain- 
tiff.   This  seems  rather  a  delegation  of  Cockerell's  authority,  than  the 

5  So  in  the  following  cases  a  covenant  to  appoint  in  the  exercise  of  a  power 
to  appoint  inter  vivos  was  enforced  in  equity  as  a  defective  appointment: 
Clifford  V.  Clifford.  2  Tern.  379  (17001 :  Fothergill  v.  Fothergill,  1  E<i.  Cas. 
Ab.  222,  pi.  9  (1702)  ;  Jackson  v.  Jackson,  4  B.  C.  C.  462  (1793) ;  Shannon 
v.  Bradstreet,  1  Sch.  &  L.  52  (1803).    (Covenant  to  exercise  a  power  to  lease.) 

6  The  opinion  onlj'  is  here  given. 

4  Kales  Pbop. — ^24 


370  POWERS  (Part  3 

personal  exercise  of  it.  He  does  not  appear  to  have  had  any  commu- 
nication with  the  plaintiff.  He  does  not  say,  I  ratify  the  terms  agreed 
upon  by  Noble,  but,  I  authorize  Noble  to  make  the  agreement.  Sup- 
posing, however,  that,  by  the  effect  of  Cockerell's  direction  to  Noble, 
this  can  be  construed  to  be  the  parol  agreement  of  Cockerell  himself, 
and  that,  subsequently  to  such  agreement,  and  on  the  faith  of  it,  an 
expenditure  has  been  made  by  the  plaintiff,  there  is  no  authority  for 
holding  that  the  remainder-man  is  bound  by  such  an  agreement. 

It  is  considered  as  a  fraud  in  a  party  permitting  an  expenditure  on 
the  faith  of  his  parol  agreement,  to  attempt  to  take  advantage  of  its 
not  being  in  writing.  But  of  what  fraud  is  a  remainder-man  guilty, 
who  has  entered  into  no  agreement,  written  or  parol,  and  has  done  no 
actToritlie  faith  of  \vhich"  the'otherjjarty  £Ould  have  reljsdj  The 
only  wayTn  which  he  could  be  affected  with  fraud,  would  be  by  show- 
ing, that  an  expenditure  had  been  permitted  by  him,  with  a  knowledge 
that  the  party  had  only  a  parol  agreement  from  the  tenant  for  life. 
Without  that  knowledge,  there  is  nothing  in  the  mere  circumstance  of 
expenditure.  For  the  prima  facie  presumption  is,  that  he  who  is 
making  it  has  a  valid  lease  under  the  power,  or  at  least  a  binding 
agreement  for  a  lease.  That  the  remainder-man  in  this  case,  or  those 
acting  on  his  behalf,  had  any  such  knowledge,  is  neither  alleged,  nor 
proved.  The  reason,  therefore,  fails,  on  which  the  case  of  a  parol 
agreement,  in  part  performed,  is  taken  out  of  the  Statute  of  Frauds. 

On  the  strict  construction  of  the  power,  the  remainder-man  wotdd 
only  be  bound  by^sTniea^se  executed  conformably  tcTjt  But  Lord 
Redesclale  has,  I  think,  in  the  case  ot  Shahnoh  v.  Bradstreet,  1  Sch. 
&  Lef.  52,  given  satisfactory  reasons,  why  a  clear,  explicrt^ written 
agreement  ought,  in  equity,  to  be  held  equivalentjto  a  lease^  and  as 
bin^dihg  on  "fhe  remainder-man  as  a  formal  lease  conceived  in  the 
same  terms  would  have  been.  But,  to  go  farther,  and  say,  that  a  man 
shall  be  bound,  not  by  his  own  parol  agreement,  but  by  the  uncom- 
municated  and  unknown  parol  agreement  of  another  person,  would 
be  to  break  in  upon  the  Statute  of  Frauds,  without  the  existence  of 
any  of  the  pretexts  on  which  it  has  been  already  too  much  infringed. 

On  the  supposition  that  the  plaintiff  cannot  obtain  specific  per- 
formance, he  pravs_tliat  he  may  be^eimliLirsed  for  his  e^q^gmlilure 
out  of  Lady  Bath's  assets.  This  would  be,  as  against  her  represent- 
atives, a  decree  merely  for  damages,  and  not  a  compensation  for  the 
benefit  her  estate  has  received.  It  is  the  estate  of  the  remaindeiMTian 
that  is  benefited  by  the  houses  bunFTijoonlrr  The  competency  of  a 
court  of  equity  to'givetfamages'for  the  noh^performance  of  an  agree- 
ment, has,  notwithstanding  the  case  of  Denton  v.  Stewart,  1  Cox,  258, 
been  questioned  by  very  high  authorities.  In  that  case,  however,  the 
party  was  guilty  of  a  fraud,  in  voluntarily  disabling  himself  to  per- 
form his  agreement,  and  had  an  immediate  benefit  from  the  breach  of 
it.  But  Lady  Bath  never  refused  to  perform  the  agreement.  On  the^ 
contrary,  the  plaintiff  aTIegel,  "that,  if  she  had  lived,  she  would  have 


Ch.  G)  DEFECTIVE    EXECUTION  371 

granted  him  a  lease.  Then  the  case  is  only  that  he  himself  has  been 
soTniprovident  as  not  to  get  from  Lady  Bath  that  which,  he  says,  she 
would  have  given  him  ;  namely,  a  lease  that  would  have  been  binding 
on  the  remainder-man.  That,  surely,  is  not  a  case  in  which  a  court  of 
equity  will  exercise  a  doubtful  jurisdiction,  by  awarding  damages  for 
a  loss,  which,  if  it  shall  ever  be  sustained,  will  have  been  occasioned, 
more  by  the  plaintiff's  negligence,  than  by  Lady  Bath's  fault.  I  say, 
if  it  shall  be  ever  sustained ;  for  it  does  not  appear  that  the  plaintiff 
has  been  yet  evicted ;  and  I  cannot  believe  that  Sir  Richard^SuLlun, 
wHen  abfeToJtidge  and  act  for  Hmiserf ,  will  think  of  taking  the  bene- 
fit  of  the  plamtiffVlmprovements^without  makmg  him  a  compensa- 
tionl^r'them.  ButJBe  that  as  Tt  may,  1  should  not  be  warranted  in 
strainmg  general  princii)les  in  order  to  obviate  the  hardship  of  a  par- 
ticular case. 

The  bill  must  be  dismissed,  but  without  costs. '^ 


SAYER  V.  SAYER. 
INNES  V.  SAYER. 

(Court  of  Chancery,  1848.     7  Hare,  377.) 

The  testatrix.  Judith  Junes,  was,  at  the  date  of  her  will,  entitled, 
imder  three  different  instruments,  to  the  dividends  on  several  sums  of 
stock  for  her  life,  with  general  powers  of  appointment  as  to  part  of 
the  funds  under  two  of  the  instruments.  1.  Under  a  settlement  made 
in  February.  1800,  on  the  marriage  of  herself  and  Thomas  Innes,  her 
deceased  husband,  she  was  entitled  for  her  life  to  £1826  8s.  lid.,  £3 
per  cent.  Consols,  standing  in  the  names  of  the  trustees  of  that  settle- 
ment, with  a  power  of  appointment  of  £1000,  like  stock,  part  thereof, 
by  her  last  will  and  testament,  in  writing,  or  any  writing  purporting 
to  be  her  last  will  and  testament,  to  be  by  her  signed,  sealed,  and  pub- 
lished, inthe  presence  of  and  attested  by  two  or  more  witnesses,  and, 
in  default  of  appointment,  in  trust  for  her  next  ofnkm  living  at  the 
tirne  of  her  decease.  2.  The  testatrix  was  entitled  for  her  life  to  a 
sum  of  £559  4s.  9d.,  New  £31/2  per  Cents.,  produced  by  property  ac- 
quired after  her  marriage,  standing  in  the  names  of  the  trustees  of  an 
indenture  of  August,  1823,  limited  in  remainder  to  the  sisters  of  the 
testatrix  and  their  issue.  3.  And,  under  the  will  of  her  deceased  hus- 
band, Thomas  Innes,  dated  in  February,  1824,  the  several  sums  of 
£10,000,  £3  per  cent.  Consols;  £5000,  New  £3V2  per  Cents.;  £300, 
Long  Annuities;  and  £1500  14s.  5d.,  £3  per  cent.  Reduced  Annuities, 
constituting  his  residuary  personal  estate,  stood  in  the  names  of  the 
executors  and  executrix  of  such  will,  of  whom  the  testatrix  was  one, 
to  the  dividends  of  which  sums  she  was  entitled  for  her  life,  with  re- 

7  Cf,  Morgan  v.  Miluian,  3  De  G.  M.  &  G.  24  (1853). 


ka     t-frit^  -ts^  t^---^ — > 


372  POWERS  (Part  3 

mainder  as  to  a  third  part  of  the  same  sums  unto  such  person  or 
persons,  at  such  time  or  times,  and  in  such  parts,  shares,  and  propor- 
tions, manner  and  form,  as  she,  by  any  deed  or  deeds,  writing  or  writ- 
ings, to  be  by  her  duly  executed,  according  to  law,  or  by  her  last  will 
and  testament  in  writing,  or  any  writing  purporting  to  be  or  in  the 
nature  of  her  last  will  and  testament,  or  codicil,  to  be  by  her  signed 
and  published  in  the  presence  of,  and  attested  by  two  or  more  wit- 
nesses, should  give,  bequeath,  direct,  limit,  or  appointThe  same ;  and, 
in'default  of  such  gift  or  appointment,  the  testator,  Thomas  Innes, 
bequeathed  the  same  to  his  brother,  Alexander  Innes,  and  his  children, 
as  therein  mentioned. 

The  testatrix  had  also,  at  the  date  of  her  will,  iSOO,  New  iSYo  per 
Cents.,  standing  in  her  own  name,  to  which  she  was  absolutely  enti- 
tled, and  which,  by  the  additions  she  subsequently  made,  was  aug- 
mented at  the  time  of  her  death  to  £12,909  19s.,  like  stock. 

The  testatrix,  by  her  will,  dated  in  January,  1833,  unattested__and 
not  referring  to  the  powerT^ave  to  the  treasurer  for  the  time  being  of 
the  Sailors'  Home  "ilOOO,  in  the  £3  per  cent.  Consols ;"  to  the  treas- 
urer of  the  Strangers'  Friend  Society  "ilOOO,  in  the  £3  per  cent. 
Consols ;"  to  the  British  and  Foreign  Bibj^e  Society  £500,  in  the  £3 
per  cent.  Consols,  aiiH^e  like  sum  to  the  Church  Missionary  Sodety, 
to  be  paid  within  six  months  after  her  decease;  and  to  Harriet  Ker 
Innes  £500,  in  the  £3  per  cent.  Consols,  free  of  legacy  duty,  to  be  paid 
within  such  six  months.  The  testatrix  then  proceeded :  "The  re- 
mainder in  the  £3  per  Cents.,  and  three  separate  sums  in  the  New 
£314  per  Cents.,  with  £100  a  year.  Long  Annuities,  and  any  other 
property  I  may  die  possessed  of,  of  what  nature  or  kind  soever,  I 
leave  to  my  brothers,"  upon  the  trusts  thereinafter  named.  The  tes- 
tatrix made  eighLotherjinjittested_testjL^^^  giving  lega- 
cies or  revoking  legacies  previously  inserted,  the  last  of  which  papers 
was  dated  the  1st  of  September,  1836.  At  the  foot  of  theeighth  tes- 
tamentary  paper,  the  testatrix  had  written,  "This  will  has  not  been 
witnessecCas  rnrtendTTf  I  am  spare^^  to  write JtOLit^fainll  The  tes- 
tatrix made  no  appointment  in  exercise  of  her  powers,  unless  such 
testamentary  papers  could  be  so  considered. 

The  testatrix  died  in  June,  1844,  and  the  will  and  other  testamen- 
tary papers  or  codicils  were  admitted  to  probate.  There  was  no  issue 
of  the  testatrix  and  her  husband. 

The  suit  of  Sayer  v.  Sayer  was  instituted  for  the  administration  of 
the  estate  of  the  testatrix ;  and  in  that  suit  the  treasurers  of  the  sev- 
eral charities  claimed  to  be  allowed  their  several  legacies  as  general 
legacies  payable  out  of  the  personal  estate.  The  master  allowed  their 
respective  claims.  The  report  was  excepted  to  by  the  residuary  lega- 
tees under  the  will  of  the  testatrix. 

The  principal  question  argued  was  whether  the  gifts  of  Consols,  in 
the  will  of  1833,  were  to  be  treated  as  a  disposition  or  an  intended 
disposition  of  that  species  of  stock  over  which  the  testatrix  had  pow- 


Ch.  G)  DEFECTIVE  EXECUTION  373 

ers  of  appointment  under  her  marriage  settlement  and  the  will  of  her 
husband. 

[The  opinion  of  Sir  James  Wigram,  V.  C,  on  this  question  is 
omitted.] 

The  suit  Innes  v.  Sayer  was  instituted  by  one  of  the  four  children 
of  Alexander  Innes,  who  were  the  residuary  legatees  under  the  will 
of  the  testator  Thomas  Innes,  against  his  surviving  executor,  (the 
other  children  and  residuary  legatees  being  defendants,)  praying  that 
the  plaintiff's  fourth  share  of  the  third  part  of  the  four  sums  "of  stock 
might,  as  on  default  of  appointment  by  the  testatrix  Judith  Innes,  be 
transferred  to  the  plaintiff.  After  the  judgment  had  been  given  on  the 
exceptions  in  Sayer  v.  Sayer,  the  treasurers  of  the  several  charities 
were  made  parties  to  the  suit  Innes  v.  Sayer,  by  amendment,  as  ad- 
verse claimants  on  the  third  part  of  the  £10,000,  £3  per  cent.  Consols 
one  of  such  four  sums.    At  the  hearing, 

Vice-Chancullor  [Sir  James  Wigram].  The  Ecclesiastical  Court 
has  decided,  that,  notwithstanding  the  clause  at  the  foot  of  the  codicil 
orTS3i5,  the  will  is  a  complete  testamentary  paper  in  this  sense,  that 
the  testatn3c~nieans  iiFto  operate"  TFthe  testatrnT  meant  tlie  wilT  of 
1833  to  operate,  I  have  only  to  take  the  paper  and  inquire  into  its 
construction.  The  question  of  construction  was  the  point  I  had  to 
consider  in  the  case  of  Sayer  v.  Sayer.  I  thought  the  language  did 
necessarily  refer  to  the  property  the  subject  of  the  power;  and,  re- 
ferring to  that  property  and  intending  the  paper  to  operate  as  her 
will,  (which  I  now  assume  to  be  the  case,)  I  must  conclude  that  the 
testatrix  has  declared  her  intention  to  execute  the  power.  The  only- 
point,  then,  which  has  to  be  considered,  is,  what  the  effect  of  the  will 
is  to  be. 

It  is  only;jnjdi&-case-ai-th£_leogj:ies  to  the  charit^ies  that  the  claim 
which  I  have  now  to  consider  can  be  made;  and  it  appears  fo  meytliat 
the  only  ^lesfionls,  whether  the  authorities  ought  to  bind  me.  I 
must  attend  to  the  decisions  to  ascertain  whether  they  cover  a  given 
point,  and  when  I  have  done  so,  and  find  that  there  are  decisions  in 
analogous  cases,  and  that  there  are  also  dicta  of  learned  judges  point- 
ing to  the  same  conclusion,  consider  whether  I  ought,  by  any  decision 
of  mine,  to  shake  that  which  is  considered  to  have  been  the  settled 
law,  if  not  before  the  Statute  of  Elizabeth,  certainly  ever  since.  It 
cannot  be  denied  that  there  are  express  decisions  of  the  highest  au- 
thority, that  the  court  will  supply  the  want  of  a  surrender  of  a  copy- 
hold in  favor  of  a  charity.  The  supplying  the  surrender  of  a  copy- 
hold, and  the  supplying  the  execution  of  a  power  which  is  defective 
in  form,  go  hand  in  hand.  It  appears  to  me,  that  wherever  you  find 
a  decision  that  the  court  will  supply  the  surrender,  it  follows  (unless 
this  case  be  an  exception)  that  the  court  will  also  supply  the  defective 
execution  of  a  power.  Such  a  case  is,  by  analogy  at  least,  a  strong 
authority  for  the  proposition  contended  for. 

With  regard  to  a  tenancy  in  tail,  the  distinction  is  palpable.     No 


374  POWERS  (Part  3 

doubt  the  tenant  in  tail  has  the  whole  interest.  It  is  not  the  case  of  a 
mere  execution  of  a  power.  At  the  same  time,  if  he  does  not  acquire 
the  dominion  of  the  estate  in  the  form  which  the  law  requires,  it  goes 
to  the  issue  in  tail  as  a  quasi  purchaser.  The  issue  take,  not  under  the 
immediate  ancestor,  but  under  the  author  of  the  estate  tail.  Yet, 
even  in  this  case,  we  find  that,  although  the  court  will  not  perfect  any 
intention  which  the  testator  may  have  manifested  to  bar  the  estate 
tail  in  favor  of  his  creditor,  wife,  or  child,  that  object  not  having  been 
efifected,  the  court  will  give  effect  to  the  intended  disposition  of  the 
estate  in  favor  of  a  charity — carrying  it  therefore  in  the  case  of  a 
charity,  for  some  reason  or  other,  beyond  the  case  of  the  creditor, 
wife,  or  child.  The  existence  of  such  a  class  of  cases  certainly  fur- 
nishes a  second  ground  for  following  what  has  hitherto  been  consid- 
ered the  rule  of  the  court. 

The  third  ground  is  the  dicta  which  unquestionably  are  to  be  found 
in  favor  of  the  proposition,  that  a  charity  is  entitled,  notwithstanding 
the  power  is  not  well  exercised.  The  case  of  Piggot  v.  Penrice,  Pre. 
in  Ch.  471,  with  the  note,  Id.  473,  appears  to  be  an  authority  for  the 
proposition  in  question.  As  the  case  is  reported  in  Comyns,  page  250, 
it  would  appear  to  be  a  direct  authority  on  the  point.  At  all  events,  I 
cannot  disregard  it  as  a  decision,  unless  those  who  ask  me  to  do  so  can 
show  me  that  the  case  is  materially  distinguishable  from  the  present 
case. 

So  much  of  analogy  and  dicta  being  found,  I  may  refer  to  the  opin- 
ion of  text  writers  ;  and  when  text  writers  of  great  experience  treat 
it  as  a  settled  principle  of  law,  that  the  court  will  supply  the  execu- 
tion,— so  much,  as  I  have  said,  being  found  to  justify  their  opinion, — 
that  is  also  a  reason  why  I  ought  not  to  take  upon  myself  to  unsettle 
what  hitherto  has  been  considered  the  rule  of  the  court. 

The  principle  upon  which  the  court  appears  to  go  is  this,  that,  if  a 
person  has  power  by  his  own  act  to  give  property,  and  has  by  some 
paper  or  instrument  clearly  shown  that  he  intended  to  give  it,  al- 
though that  paper,  by  reason  of  some  informality,  is  ineffectual  for 
the  purpose,  yet  the  party  having  the  power  of  doing  it  by  an  effectual 
instrument,  and  having  shown  his  intention  to  do  it,  the  court  will,  in 
the  case  of  a  charity,  by  its  decree  make  the  instrument  effectual  to 
do  that  which  was  intended  to  be  done.  It  is  not  for  me  to  give  any 
opinion,  whether  the  principle  is  right  or  not.  There  appears'  to  be 
very  high  authority  for  the  application  of  the  principle,  independently 
of  the  Statute  of  Elizabeth ;  and  it  has  been  applied  since  the  Statute. 
I  think,  therefore,  I  ought  not  to  entertain  any  question  upon  the 
point.  If  the  point  is  to  be  hereafter  considered  and  treated  differ- 
ently, it  ought  to  be  ruled  by  a  higher  authority  than  the  judge  who 
presides  in  this  court. 

There  is  another  question,  with  reference  to  the  different  sums  of 
Consols,  which  I  must  consider.  It  is,  no  doubt,  the  intention  of  the 
testatrix  that  the  persons  who  would  take  in  default  of  appointment 


Ch.  G)  DEFECTIVE  EXECUTION  375 

under  her  husband's  will,  should  not  take  the  residue  of  the  stock. 
It  is  clear  she  meant  to  intrench  on  the  £1000  stock  under  the  settle- 
ment ;  for  by  her  will  she  disposes  of  more  than  the  third  of  the 
Consols  to  which  the  power  under  her  husband's  will  extends.  There 
is  nothing  upon  the  will  to  intimate  that  she  intended  the  fund  to 
come  out  of  one  of  those  sums  of  stock,  rather  than  the  other.  I 
must  take  the  will  as  saying,  "There  are  two  sums  of  Consols  over 
which  I  have  a  power  of  appointment :  with  respect  to  that  stock,  I 
give  so  much  to  the  charity,  and  the  residue  to  certain  persons  nam- 
ed." Those  persons  cannot  take  under  that  appointment,  although 
the  charity  can.  I  do  not  see  my  way  to  marshalling  the  claims  on  the 
different  funds.  If  I  attempted  to  do  so,  I  might  to  some  extent  be 
giving  effect  to  the  appointment  in  favor  of  those  persons  who  are 
excluded  by  the  circumstance  of  its  informality. 

The  case  was  afterwards  spoken  to  on  minutes.  The  £1000  Con- 
sols, standing  in  the  names  of  the  trustees  of  the  settlement  of  Feb- 
ruary, 1800,  not  being  a  subject  of  this  suit,  it  was  suggested  that  the 
charities  should  in  this  suit  take  no  more  than  an  apportioned  part  of 
their  legacies  out  of  the  Consols  which  formed  part  of  the  residuary 
estate  of  Thomas  Innes  to  be  administered  in  this  suit.^ 


JOHNSON  V.  TOUCHET. 

(Court  of  Chancery,  1S67.     37  Law  J.  Ch.  [N.  S.]  25.) 

Bill  ^  against  John  Hastings  Touchet,  Richard  Burgass,  and  Mary 
Dennis,  the  trustees  and  executors  of  the  will  of  James  Dennis,  pray- 
ing a  declaration  that  a  covenant  in  the  marriage  settlement  of  the 
plaintiff  with  Ann  Dennis  ought,  in  equity,  to  be  deemed  a  sufficient 
execution  of  a  power  given  to  her  by  the  will  of  James  Dennis. 

James  Dennis,  who  died  in  1855,  devised  and  bequeathed  the  residue 
of  his  real  and  personal  estate  to  the  defendants  upon  trust,  as  to  one 

8  The  minute  of  decree  was:  "Declare  that  the  testatrix  intended  by  her 
unattested  will,  dated  the  1.3th  of  January,  18.33,  to  execute  the  general 
power  of  apijointmeut  given  or  reserved  to  her  by  the  will  of  her  late  hus- 
band Thomas  Innes,  deceased,  over  one-third  part  of  his  residuary  estate ; 
and  that  the  defective  gxecution  of  the  said  ix>wer,  by  reason  of  the  non- 
attestation  of  the  will  of~tbe  said  testatrix,  ought  to  be  supplied  in  favor 
of  the  four  charitable  institutions  therein  mentioned.  Dn-ections  for  trans- 
fer of  the  stock,  and  payment  of  the  accrued  dividends  to  the  several  treas- 
urers accordingly.  Such  transfer  and  payment  to  be  without  prejudice  to  the 
right  (if  any)  of  the  plaintiff  and  the  other  residuary  legatees  of  Thomas 
Innes  to  enforce  contribution  in  respect  of  the  said  sums,  .stocks,  and  cash, 
against  the  £1000.  £3  per  cent.  Consols,  standing  in  the  names  of  the  trus- 
tees of  the  settlement  of  February,  ISOO,  on  which  the  testatrix  had  a  gen- 
eral power  of  appointment." 

The  judgment  of  the  Vice-Chancellor  was  affirmed.  Innes  v.  Sayer,  3  Mac. 
&  G.  606,  620-622  (1S51) ;  and  was  followed  in  Pepper's  Will,  1  Pars.  Eq.  436 
(1850). 

»  The  following  statement  is  substituted  for  that  iu  the  rei)ort. 


376  POWERS  (Part  3 

undivided  fifth  part  thereof,  "igr  such  person  and  persons,  for  such 
estate  or  estates,  interest  and  interests,  intents  and  purposes,  and  al- 
together in  such  manner  and  form"  as  Ann  Dennis,  after  she  should 
"attaiiithe  age  of  twenty-five  years  an3~notjbefofe^shgul(l  by  de^  or. 
deeds  from  time  to  time  and  at  any  time  appoint,  and  in  default  of  such 
appointment  to  pay  the  income  to  Ann  Dennis  during  her  life,  and 
after  her  decease  "for  such  person  or  persons,  for  such  estate  or  es- 
tates, interest  or  interests,  intents  and  purposes,  and  altogether  in  such 
manner  and  form"  as  Ann  Dennis  after  she  should  "attain  the  age  of 
twenty-five  years  and  noT'hefore^'  should,  by  her  last  will,  appoint; 
andTmdefault  of  such  appointment  for  her  children,  who  beTng  males 
should  attain  twenty- one,  or  being  females  should  attain  that  age  or 
marry. 

In  1859,  by  an  indenture  between  the  plaintiff,  Ann  Dennis,  and  the 
defendant,  John  Hastings  Touchet,  and  one  James  Dennis,  after  a  re- 
cital that  Ann  Dennis  was  then  about  twenty-three  years  old,  that  a 
marriage  was  contemplated  between  her  and  the  plaintiff,  and  that  upon 
the  treaty  for  the  marriage  it  was  agreed  that  Ann  Dennis  should  en- 
ter into  the  covenant  therein  contained,  it  was  witnessed  that  in  pur- 
suance of  said  agreement,  and  in  consideration  of  said  contemplated 
marriage,  Ann  Dennis  and  the  plaintiff  covenanted  with  said  Touchet 
and  James  Dennis  that  in  case  the  marriage  should  take  effect  and 
Ann  Dennis  should  attain  the  age  of  twenty-five,  she  would  appoint  the 
property  ovejiyvhich  she  should,  on  attaining  twenty-five,  have  a  power 
of  appointment  to  said  ToucTiet  and  James  Dennis,  "in  trust  to  pay  the 
income  To~Ann  DentiTs  d^uring  her  life,  and  orrtrer  death  to  the  plain- 
tiff, and  on  the  death  of  the  survivor,  to  hold  the  principal  for  such 
one  or  more  of  her  children,  as  she  should  appoint,  and  in  default  of 
such  appointment  for  her  children  who  being  sons  should  attain  twen- 
ty-one, or  being  daughters  should  attain  twenty-one  or  marry,  with 
gifts  over. 

After  the  making  of  this  indenture  the  marriage  between  the  plain- 
tiff and  Ann  Dennis  took  effect.  Ann  Johnson  attained  the  age  of 
twenty-five  in  1861.  She  died  in  1864,  leaving  a  husband  and  _two 
children,  and  not  having  exercised  the  power_o|_appoijTtment. 

Stuart,  V.  C.  The  principles  on  which  cases  of  this  description 
depend  are  well  settled.  A  covenant  to  exercise  a  power,  if  it  has  any 
operation  at  all,  has  it  from  the  time  of  the  execution  of  the  covenant. 
If  the  covenant  be  one  in  favor  of  the  children,  or  of  persons  who  ac- 
quire rights  recognized  by  the  court,  such  as  purchasers  under  a  mar- 
riage settlement,  it  becomes  particularly  the  object  of  the  court's  at- 
tention. The  main  argument  against  the  alleged  operation  of  the  cov- 
enant in  the  presentTase  \vas7tliat  there  was  an  express  provision  in 
the  creation  oT^ie  power  that  it  should  not  be  exercised  until  the  donee 
of  iL^shouH^^^HayF  aUalne^lhe  age  of  twenty- five  years.  It  appears, 
however,  that  the  donee,  at  the  age  of  twenty2three_years,  executed 


Ch.  6)  DEFECTIVE    EXECUTION  377 

the  covenant  wh^ich  is  now  asked  to  be  declared  a  valid  exercise  of  the 
powen  The  object  of  the  donor  of  the  power,  in  providing  that  the 
donee  should  not  exercise  it  until  twenty-five  years  of  age,  is  fully  at- 
tained by  the  circumstance  that,  from  the  nature  of  the  covenant  itself, 
it  could  have  had  no  operation  if  the  donee  had  died  before  attaining 
the  age  of  twenty-five  years.  There  cannot,  I  think,  be  a  doubt,  where 
there  is  a  covenant  of  this  kind,  that,  if  the  donee,  having  executed  the 
covenant,  survives  the  prescribed  age,  but  refuses  to  perform  the  cove- 
nant by  executing  a  formal  appointment,  this  court  will  compel  him 
to  do  so.  Had  that  been  the  case  here,  it  would  have  been  one  of  a 
person  called  upon  to  perform  a  covenant  entered  into  for  a  valuable 
consideration,  contemplating  the  execution  of  an  appointment  at  a  fu- 
ture time.  The  effect  of  such  a  covenant  is  to  bind  the  property  by 
an  equitable  execution  of  the  power.  I  abide  by  all  that  is  stated  in 
the  report  of  my  judgment  in  the  case  of  Affleck  v.  Affleck.^"  The 
decision  arrived  at  in  that  case  was  founded  on  the  accurate  statement 
of  the  principles  laid  down  by  Lord  Redesdale  in  Shannon  v.  Brad- 
street,  1  Sch.  &  Lef.  52.  There,  Lord  Redesdale,  in  speaking  of  pow- 
ers to  jointure,  said :  "It  has  been  determined  that  a  covenant  is  a  suf- 
ficient declaration  of  intent  to  execute,  even  when  made  before  the 
power  arose,  as  where  a  power  is  limited  to  be  exercised  by  a  tenant 
for  life  in  possession,  and  he  covenants  that  when  he  conies  into  pos- 
session he  will  execute.  In  all  these  cases  courts  of  equity  have  re- 
lieved." There,  as  in  other  cases,  the  covenant  was  made  before  the 
strict  right  to  execute  the  power  had,  according  to  the  terms  of  it, 
arisen;  but  it  was  decided  that  that  was  no  substantial  reason  why 
the  court  should  refuse  to  treat  the  covenant  as  a  sufficient  execution 
of  the  power.  The  other  argument  put  forward  in  the  present  case 
to  induce  the  court  to  treat  this  covenant  as  an  invalid  execution  was, 
that  the  children,  who  are  the  objects  of  the  original  power  as  well 
as  of  the  marriage  settlement,  will,  if  the  covenant  in  it  is  not  held  to 
be  an  execution  of  the  power,  take  immediately,  under  the  limitation 
in  the  will,  in  default  of  appointment.  But  then  the  question  still  re- 
mains the  same.  If  the  covenant  is  a  valid  execution  of  the  power,  it 
cuts  off  the  limitation  in  default  of  appointment.  The  case  of  the  chil- 
dren might  have  been  better  if  the  covenant  had  not  been  executed ; 
but  as  it  is,  they  do  not  suffer  much.  Then,  again,  there  is  the  interest 
of  the  husband  to  be  considered.  He  is  clearly  entitled,  under  the  mar- 
riage settlement,  to  the  benefit  of  the  covenant.  Its  execution  formed 
part  of  the  consideration  for  the  marriage  contract;  and  the  court  is 
bound  to  regard  that.    There  must,  therefore,  be  a  declaration  that  the 

10  3  Sm.  &  G.  394  (1S57).  In  this  case  A.  on  his  marriage  covenanted  that 
if  he  came  into  possession  he  would  exercise  a  power  of  jointuring  wliich 
could  be  exercised  only  by  tenant  for  life  in  possession.  Before  coming  in- 
to possession  G.  became  lunatic.  Stuart,  V.  C,  held,  that  the  covenant  was 
a  defective  execution  of  the  power,  and  should  be  enforced  after  G.  came 
into  possession  against  the  remainderman. 


378  POWERS  (Part  S 

covenant  binds  the_property.  The  costs  of  all  parties  as  between  so- 
licTtoFand  client,  must  be  paid  out  of  the  share  of  the  trust  property 
to  which  the  suit  relates. ^^ 

11  In  Cooper  v.  Martin,  L.  R.  3  Ch.  47,  the  widow  was  given  a  power  to 
appoint  rrr-Ueetl  or  instrument  sealed  and  deiiverea  oerore  the  yonniiest 
<-hiTd  attaiiiedThe  age  of  twenty-th-e.  IK'ld._[haFTier\viTI  executed  LefoT-e 
the'younge'st  child  attained  twenty-five,  by  Jajdng  effect  by^ 'her  death,  after 
tbTrrjTeriocr.  was  not  an^ppomlmentl  aii  J  Ivlis  noF  such  a  defective  execu- 
tio n-fts^vvrmM-ije  Relieved jyjMMtJiieq  Cairns,  L.  J.,  said:    "The 

power  giveiFto  the  Widow  was  to  be  exercised  by  her  before  the  youngest 
son  attained  twenty-five.  The  reason  for  this  appears  obvious  on  the  face 
of  the  will.  The  residuary  personal  estate  was  to  be  distributed  at  the  time, 
and  although  the  life  estate  of  the  widow  in  Pain's  Hill  might  as  to  it  post- 
pone the  sale  and  distribution  to  a  later  periotl  it  was  clearly  in  the  highest 
degree  desirable  that  at  the  period  when  the  residuary  estate  should  become 
divisible  the  children  of  the  testator  should  know  definitely  what  were  their 
vested  and  transmissible  rights  in  all  his  property.  The  time  within  which 
an  appcintnient  was  to  be  made  by  the  widow  was  therefore,  in  my  opinion, 
not  a  matter  of  form,  but  of  the  substance  and  essence  of  the  power." 


Ch.  7)  WHAT   WORDS   EXERCISE    A    POWER  879 

CHAPTER  VII 
WHAT  WORDS  EXERCISE  A  POWER 


SIR  EDWARD  CLERK'S  CASE. 

(Court  of  Queen's  Bench,  1599.     G  Coke,  17b.) 
See  ante,  p.  36,  for  a  report  of  the  case. 


STANDEN  V.  STANDEN. 

(Court  of  Cbancery,  1795.     2  Yes.  .Jr.  5^0.) 

Charles  Millar  by  his  will  gave  the  sum  of  £200  to  trustees  upon  trust 
to  place  "Cliarles  Millar  Standen  and  Caroline  Elizabeth  Standen,  legit- 
imate son  and  daughter  of  Charles  Standen  now  residing  with  a  com- 
pany of  players,"  apprentices,  as  the  trustees  should  think  fit.  The 
testator  then  directed  his  real  estate  to  be  sold;  and  gave  the  money 
arising  from  the  sale  and  the  residue  of  his  personal  estate  in  trust  for 
his  wife  for  life ;  and  after  her  decease  as  to  one  moiety  for  such  per- 
son or  persons  as  she  should  by  any  deed  or  writing  or  by  will  with 
two  or  more  witnesses  appoint,  and  for  want  of  appointment,  for  "all 
the  legitimate  children  of  Charles  Standen  living  at  his  decease,  share 
and  share  aUke;"  and  if  but  one,  then  for  that  one;  "and  if  it  should 
happen,  that  there  should  be  no  legitimate  child  of  Charles  Standen 
living  at  his  decease,"  then  for  William  Seward,  one  of  the  trustees,  his 
executors  and  administrators.  The  testator  gave  the  other  moiety  in 
trust  for  "Charles  Millar  Standen  and  Caroline  Elizabeth  Standen, 
legitimate  son  and  daughter  of  Charles  Standen,"  equally  between  them, 
share  and  share  alike ;  with  survivorship  between  them  in  case  of  the 
death  of  either  before  the  age  of  twenty-one  or  marriage;  and  if  it 
should  happen,  that  both  of  them  should  die  before  the  age  of  twenty- 
one  or  marriage,  then  he  gave  it  in  trust  for  "such  legitimate  children 
of  Charles  Standen"  as  should  be  living  at  the  decease  of  the  survivor 
of  those  two,  share  and  share  alike;  if  but  one,  for  that  one;  and  if 
there  should  be  no  such  child  living  at  the  decease  of  the  survivor,  or 
all  should  die  before  the  age  of  twenty-one  or  marriage,  then  for  Wil- 
liam Seward,  his  executors  and  administrators ;  and  he  appointed  his 
trustees  with  his  wife  to  be  his  executors. 

The  real  estate  was  not  sold.  The  testator's  widow  received  the  rents 
and  profits  and  the  produce  of  the  personal  estate  for  her  life ;    and  by 


380  POWERS  (Part  3 

her  will,  after  disposing  of  some  specific  articles  and  a  gold  watch 
and  some  jewels,  which  she  described  to  have  been  her  husband's  she 
gave  the  residue  thus :  "All  the  rest,  residue  and  remainder  of  my  es- 
tate and  effects  of  what  nature  or  kind  soever  and  whether  real  or 
personal,  and  all  my  plate,  china,  linen  and  other  utensils,  which  I  shall 
be  possessed  of  interested  in  or  entitled  to  at  the  time  of  my  decease, 
subject  to  and  after  payment  of  all  m.y  just  debts,  funeral  expenses 
and  charges  of  proving  my  will  and  specific  legacies,  I  give  to  my 
worthy  friend  Samuel  Howard  for  his  own  use  and  benefit ;  and  I  do 
appoint  him  my  executor." 

This  will  was  attested  by  three  witnesses.  The  testatrix  had  no  other 
real  estate  than  that  directed  by  her  husband's  will  to  be  sold.  Charles 
Standen  in  1755  married  Anne  Lewis.  The  defendant  Charles  Standen, 
the  only  issue  of  that  marriage,  was  born  in  1758.  There  was  an  objec- 
tion to  the  validity  of  the  marriage ;  and  the  parties  after  cohabitation 
for  six  or  seven  years  separated  under  articles  of  agreement;  and  Anne 
Lewis  went  by  her  maiden  name.  In  1769  Charles  Standen  the  father 
married  Anne  Gooch;  who  lived  with  him  as  his  wife  till  her  death. 
Charles  Millar  Standen,  Caroline  Elizabeth  Standen,  and  others,  chil- 
dren by  the  second  marriage,  were  the  plaintiffs. 

Under  a  reference  to  the  master,  Charles  Standen  the  defendant  was 
reported  the  only  legitimate  child.  Afterwards  an  issue  was  directed; 
and  the  verdict  was  in  his  favor.  Lord  Thurlow  being  much  dissatis- 
fied with  the  verdict  directed  another  trial ;  in  which  there  was  also  a 
verdict  for  the  defendant  Charles  Standen.  Upon  the  equity  reserved 
the  questions  were,  first,  whether  the  plaintiffs  Charles  Millar  Standen 
and  Caroline  Elizabeth  Standen  were  entitled  to  the  interests  under  the 
will  of  Charles  Millar  given  to  them  by  name,  but  under  the  wrong 
description  of  legitimate  children ;  secondly,  whether  the  residuary 
clause  in  the  will  of  Mrs.  Millar  was  a  good  execution  of  her  power  of 
appointment  under  the  will  of  her  husband ;  if  not,  thirdly,  whether 
the  plaintiffs  were  entitled  to  share  with  the  defendant  Charles  Standen 
under  the  trust,  for  want  of  appointment  of  that  moiety,  for  all  the 
legitimate  children  of  Charles  Standen.  Evidence  of  conversations 
with  the  person,  who  drew  Mrs.  Millar's  will,  to  show  she  had  no  other 
real  estate  than  that  directed  by  her  husband's  will  to  be  sold,  was 
rejected. 

June  9.  Lord  Chancellor  [Loughborough].  As  to  Charles 
Millar  Standen  and  Caroline  Elizabeth  Standen  the  question  is  not  very 
great;  for  a  wrong  description  certainly  will  not  take  away  their  leg- 
acies. The  argument  is  a  strong  one,  that  if  he  meant  those  two  as 
legitimate  children,  he  must  mean  all  subsequent  children  of  the  same 
marriage  to  be  legitimate ;  and  yet  I  do  not  know  how  to  bring  them 
in  as  legitimate  children  when  they  are  not  so. 

June  10.  Lord  Chancellor.  The  point  as  to  legitimacy  does  not 
arise;  for  after  the  best  consideration  I  am  clearly  of  opinion,  that  the 


Ch.  7)  WHAT   WORDS   EXERCISE    A    POWER  381 

disposition  made  by  Mrs.  Millar  affects  that  interest  given  to  her  by 
the  will  of  her  husband;  and  therefore  no  part  of  the  estate  belongs 
to  the  defendant  Charles  Standen.  I  have  looked  into  the  two  cases 
cited  against  this  construction ;  and  those  determinations  are  perfectly 
right. 

In  Andrews  v.  Emmot  the  will  upon  the  view  of  it  could  not  give 
to  any  person  an  idea,  that  the  testator  had  the  least  relation  to  any 
interest  he  took,  limited  as  that  interest  was,  by  the  settlement  upon 
his  marriage.  By  that  settlement  a  sum  of  £3000  stock  was  conveyed 
to  trustees  in  trust  for  the  husband  for  life ;  and  after  his  decease,  if 
his  wife  should  survive  him,  to  pay  £500  to  her  for  her  own  use  and 
the  interest  of  the  residue  to  her  for  life;  and  after  the  decease  of  both 
to  distribute  such  residue  among  the  children  of  the  marriage ;  and  if 
there  should  be  no  child,  to  transfer  the  same  as  the  husband  should 
by  deed  or  will  appoint.  Three  months  after  the  marriage  the  husband 
made  his  will ;  and  at  that  time  it  was  not  natural  to  suppose,  his  ob- 
ject was  to  dispose  of  that  interest;  for  he  had  no  disposable  interest 
in  the  property;  he  had  a  mere  contingency  in  default  of  issue,  that 
would  give  him  a  right  to  appoint.  The  will  was  a  plain  will,  giving 
after  the  death  of  his  wife  some  legacies,  and  the  residue  in  general 
terms  to  Emmot.  He  lived  three  years  afterwards;  and  at  his  death 
there  was  no  issue.  The  claim  was  set  up  to  £2500  part  of  the  £3000 
as  passing  under  that  will ;  and  it  was  set  up  solely  upon  this  ground, 
(for  there  were  no  words  at  all  relating  to  it)  that  he  had  left  such 
legacies,  as  could  not  otherwise  be  paid  than  by  taking  in  this  fund. 
The  argument  was  perfectly  weak :  first,  he  was  not  to  be  in  receipt  of 
that  sum  till  after  the  death  of  his  wife  and  in  the  event  of  there  being 
no  children ;  therefore  it  was  not  to  be  relied  upon  for  payment  of  the 
legacies ;  but  independent  of  that  the  amount  of  the  legacies  could  not 
be  an  indication  of  the  state  of  his  personal  property.  An  inquiry  as 
to  the  amount  of  his  propert>'  at  the  time  of  making  the  will  was  re- 
fused very  properly  both  by  Lord  Kenyon  and  Lord  Thurlow ;  for  it  is 
too  vague  to  calculate,  that  a  man  must  be  supposed  to  attach  a  con- 
tingent interest,  not  fairly  to  be  deemed  a  property,  merely  because  his 
calculation  as  to  what  he  might  die  possessed  of  had  eventually  failed. 
Then  put  that  out  of  the  case :  it  would  be  harsh  enough  as  against  a 
wife  to  suppose  him  to  execute  this  power,  where  prima  facie  no  inten- 
tion to  execute  is  indicated. 

The  case  in  the  Common  Pleas  is  still  more  distinct.  The  money 
was  not  at  all  the  property  of  the  testatrix.  It  was  to  be  paid  not  to 
her  executor,  but  to  such  person  as  she  should  appoint.  It  was  claimed 
by  the  same  person,  executor  and  residuary  legatee.  Nothing  can  go 
as  part  of  the  residue,  that  would  not  go  to  the  executor ;  and  clearly 
there  the  executor  was  not  entitled ;  it  was  made  payable  to  her  ap- 
pointee purposely  to  exclude  the  executor.  How  does  this  case  stand? 
It  is  material  to  consider,  what  the  interest  was,  that  she  took  under 


382  POAVERS  (Part  3 

her  husband's  will,  and  what  has  she  done.  She  was  entitled  for  life 
to  the  income  of  all  the  residue  of  his  real  and  personal  estate ;  and  a 
moiety  was  given  to  her  absolute  disposal  by  any  deed  or  writing  or  by 
her  will  attested  by  two  witnesses.  She  was  not  limited  as  to  objects; 
and  as  to  the  mode  it  was  as  ample  a  latitude,  as  any  one  could  have. 
It  is  a  little  hard  to  attempt  to  explain,  that  it  was  not  her  estate.  How 
could  she  have  had  it  more  than  by  the  eiijoyment  during  life  and  the 
power  of  disposing  to  whatever  person  and  in  whatever  manner  she 
pleased  with  the  small  addition  of  two  witnesses.  By  her  will  she  gives 
all  her  estate  and  effects.  It  is  hard  to  say,  that  using  that  expression 
she  meant  to  distinguish,  and  not  to  include,  this  ;  which  is  as  absolutely 
hers  as  any  other  part  of  her  property.  But  the  person,  who  drew 
the  will,  goes  on  with  augmentative  phrases  "of  what  nature  or  kind 
soever,  and  whether  real  or  personal :"  these  words  do  not  add  much  to 
the  force  of  it :  "which  I  shall  be  possessed  of  interested  in  or  entitled 
to."  It  is  admitted  there  would  be  no  doubt,  if  she  had  said,  "of  which 
I  have  power  to  dispose."  Those  last  words  would  not  add  much  after 
what  she  said  before.  But  take  it  according  to  the  strict  technical  rule 
in  Sir  Edward  Clere's  Case,  that  a  general  disposition  will  not  dispose 
of  what  the  party  has  only  a  power  to  dispose  of,  unless  it  is  necessary 
to  satisfy  the  words  of  the  disposition.  Mrs.  Millar  had  no  other  real 
estate.  I  am  bound  to  satisfy  all  these  words  upon  the  technical  rule. 
I  can  satisfy  them  no  other  way.  I  cannot  avoid  supposing  what  every 
one  must  be  convinced  she  meant,  that  she  made  no  difference  between 
what  she  had  from  her  husband  and  her  other  property.  Therefore 
there  is  no  difficulty  as  to  this  moiety ;  and  the  other  belongs  to  Charles 
Millar  Standen  and  Caroline  Elizabeth  Standen.^ 


JONES  V.  TUCKER. 

(Court  of  Chancery,  1817.    2  Mer.  533.) 

Mary  Mones,  by  her  will,  gave  and  devised  all  her  freehold  and  copy- 
hold estates  to  the  use  of  the  defendant  Tucker,  his  heirs  and  assigns, 
upon  trust  to  permit  Elizabeth  Smith,  widow,  to  receive  the  rents,  &c. 
for  her  life,  for  her  own  use  and  benefit ;  and,  after  her  death,  upon 
trust  to  sell  and  dispose  of  the  same,  and  out  of  the  produce  thereof 
(among  other  things)  to  pay,  and  the  testatrix  thereby  bequeathed, 
ilOO,  "to  such  person  or  persons  as  the  said  Elizabeth  Smith  should 
by  her  last  will  appoint;"  and,  subject  to  the  payment  thereof,  and  of 
certain  other  sums  thereby  given,  the  testatrix  gave  and  devised  the 
said  estates  to  the  defendant,  his  heirs  and  assigns,  and  appointed  him 
sole  executor. 

1  The  decree  was  affirmed  in  the  House  of  Lords,  6  Bro.  P.  C.  (Tonil.  ed.) 
193. 


Ch.  7)  WHAT   WORDS    EXERCISE    A    POWER  383 

Elizabeth  Smith  survived  the  testatrix  Mary  Mones,  and  made  her 
will  as  follows :  "I  will  and  bequeath  to  Mrs.  Mary  Jones  (the  plain- 
tiff) the  sum  of  ilOO,  likewise  the  whole  of  my  household  furniture, 
plate,  and  linen,  &c.  Whatever  remains  to  me  for  rent  from  Mr. 
Tucker,  is  to  discharge  my  rent  and  funeral.  I  likewise  appoint  the 
aforesaid  Mary  Jones  to  be  my  sole  executor.  And  if  the  said  Mary 
Jones  should  decease,  her  husband  Mr.  Richard  Jones  to  execute  in- 
stead." 

Elizabeth  Smith  died  on  the  7th  of  March,  1814,  and  the  plaintiff 
Mary  Jones  proved  the  will. 

The  bill,  charging  that  Elizabeth  Smith,  at  the  time  of  her  death,  was 
not  possessed  of,  or  entitled  to  any  personal  estate  whatever,  except 
a  few  articles  of  household  furniture,  which  were  shortly  afterwards 
sold  by  the  plaintiffs  for  £13,  and  the  produce  applied  in  payment  of 
her  funeral  expenses  ;  and  that  she  had  often,  before  she  made  her  will, 
expressed  and  declared  it  to  be  her  intention  to  give  to  the  plaintiff 
Mary  Jones  the  sum  of  ilOO,  over  which  the  power  of  appointment  was 
given  her  by  the  will  of  Mary  Mones ;  and  that,  in  making  her  will,  she 
particularly  instructed  the  person  who  prepared  it,  that  the  said  sum 
of  £100,  so  charged  on  the  freehold  and  copyhold  estates,  should  be 
thereby  disposed  of  and  given  to  the  plaintiff ;  prayed  that  the  defend- 
ant might  be  decreed  to  pay  the  same  accordingly ;  or  that  so  much 
of  the  three  per  cents,  (wherein  the  produce  of  the  estates  sold  had 
been  invested)  as  was  necessary,  should  be  sold,  and  the  ilOO  paid 
thereout. 

The  defendant,  by  his  answer,  submitted  that  the  ilOO  given  by  the 
will  of  Elizabeth  Smith  was  not  an  appointment  of  the  £100  under  the 
will  of  Mary  Mones,  but  a  general  legacy ;  and  said  that,  so  far  from 
having  made  (in  the  defendant's  presence,  or  to  his  knowledge)  any 
such  declarations  of  intention  as  in  the  bill  stated,  Mrs.  Smith  had, 
since  the  date  of  her  will,  expressed  a  wish  to  sell  the  reserved  sum  of 
£100,  and  had  even  offered  the  same  for  sale  accordingly. 

No  evidence  was  gone  into;  and  the  bill  not  having  put  in  issue 
the  fact  that  Mrs.  Smith  had  no  other  property  but  the  furniture, 
which  was  sold,  at  the  time  of  making  her  will,  a  motion  had  been 
made  before  the  Lord  Chancellor,  for  liberty  to  amend,  by  inserting  a 
charge  to  that  effect;  but  which  was  refused,  the  cause  being  already 
set  down  for  hearing;  and  it  now  came  on  to  be  heard  upon  bill  and 
answer. 

The  Master  of  the  Rolls  [Sir  William  Grant].  Although  the 
property  in  dispute,  in  this  case,  is  of  little  value,  the  question  is  of 
considerable  importance.  With  reference  to  the  general  rule,  to  which 
it  is  sought  to  make  it  an  exception,  it  is,  assuming  the  statement  to  be 
true,  perhaps  as  strong  a  case  as  can  be  brought  before  the  court.  If 
a  person,  having  no  property  at  all,  and  only  a  power  over  a  certain 
sum  of  money,  gives  that  single  sum,  little  doubt  can  arise  as  to  the  in- 


384  POWERS  (Part  3 

tention.  But  the  question  is,  how  we  can  get  at  the  fact,  and  whether 
there  can  be  an  inquiry  for  the  purpose  of  ascertaining  it.  In  Andrews 
V.  Emmott,  2  Bro.  297,  in  the  first  instance,  the  court  did  direct  an 
inquiry  into  the  state  of  the  property,  at  the  time  of  the  will  being  made, 
as  well  as  at  the  time  of  the  death.  But,  when  the  cause  came  on  for 
further  directions,  the  Master  of  the  Rolls  seems  to  have  been  of  opin- 
ion, that  the  quantum  of  property  was  not  a  fit  subject  for  inquiry.  I 
agree  that  that  was  a  weaker  case  than  the  present.  It  was  not  asserted 
that  the  testator  there  had  no  personal  property,  but  only  that  he  had  not 
enough  to  pay  all  he  had  given ;  which  is  but  a  slight  circumstance  as 
an  indication  of  intention.  Here  it  is  alleged,  that  the  testatrix  had  no 
property,  except  a  few  articles  of  household  furniture,  which  she  has 
specifically  bequeathed.  Some  property,  however,  she  had.  She 
speaks  of  rent  due  to  her,  as  well  as  household  furniture,  plate,  and 
linen.  Then,  what  is  to  be  the  quantum  of  property  that  shall  furnish 
the  criterion  for  deciding  whether  a  testator,  making  a  bequest,  is  or  is 
not  exercising  a  power?  It  is  not  like  an  inquiry  whether  there  be  any- 
thing but  copyhold  to  answer  a  devise  of  land.  The  question  there  is, 
whether  there  was  anything  for  the  will  to  operate  upon  at  the  time 
when  it  was  made?  A  will  of  personalty  speaks  at  the  death.  The 
state  of  that  description  of  property  at  the  time  of  the  will,  does  not 
furnish  the  same  evidence  as  to  the  intention. 

In  the  case  of  Nannock  v.  Horton,  7  Ves.  398,  the  Lord  Chancellor, 
referring  to  Andrews  v.  Emmott,  and  other  cases  of  that  class,  takes 
it  to  be  settled  "that  you  are  not  to  inquire  into  the  circumstances  of 
the  testator's  property  at  the  date  of  the  will,  to  determine  whether  he 
was  executing  the  power  or  not." 

In  my  own  private  opinion,  I  think  the  intention  was  to  give  the  f  100, 
which  the  testatrix  had  a  power  to  dispose  of ;  but  I  do  not  conceive 
that  I  could  judicially  declare  the  power  to  have  been  executed,  even 
if  the  result  of  an  inquiry  should  verify  the  representation  that  is  made 
as  to  the  state  of  her  property. 

Bill  dismissed.^ 

2  Accord :  Webb  v.  Honnor,  1  Jac.  &  W.  '352  (1820) ;  Davies  v.  Thorns,  3 
De  G.  &  Sm.  .347  (1849). 

Contra:  White  v.  Hicks,  33  N.  Y.  383  (1865).  And  see  Munson  v.  Berdan, 
35  N.  J.  Eq.  376  (1882). 


Ch.  7)  WHAT   WORDS   EXERCISE    A    POWER  385 

WALKER  V.  MACKIE. 

(Court  of  Chancery,  1827.    4  Russ.  76.) 

The  testatrix  in  this  case  had  power  to  appoint  by  will  a  certain 
leasehold  estate,  and  certain  sums  of  3  per  cent,  stock,  which  were 
standing-  in  the  name  of  the  Accountant-General  of  the  Court  of  Chan- 
cery. She  was  entitled  to  both  for  her  life ;  and  the  stock  had  been 
transferred  to  the  accountant-general  upon  a  bill  filed  by  her. 

The  testatrix  began  her  will  by  giving  certain  pecuniary  legacies, 
and  then  gave  "all  the  rest  and  residue  of  her  bank  stock  to  her  god- 
daughter, Mary  Ann  Wood,  with  her  wearing  apparel,  goods,  and 
chattels  of  every  kind  whatsoever,  and  all  other  property  she  possessed 
at  the  time  of  her  decease,  excepting  i50  of  her  bank  stock,  which 
she  gave  thereout  to  her  executors."  It  was  proved,  that  she  had  no 
bank  stock,  nor  any  stock  whatsoever,  except  the  stock  in  court,  over 
which  she  had  a  power  of  appointment. 

The  question  was,  whether  the  will  was  a  good  execution  of  the 
power,  so  as  to  pass  the  stock. 

The  Master  of  the  Rolls  [Sir  John  Leach]  was  of  opinion  that 
the  will  was  a  good  execution  of  the  testatrix's  power  as  to  the  3  per 
cent,  stock  in  court ;  that  her  pecuniary  legacies  were  payable  out  of 
it ;  and  that  the  will  was  also  a  good  execution  of  her  power  as  to  the 
leasehold  estate ;  it  being  plain  that  she  meant  to  describe  the  prop- 
erty, over  which  her  power  extended,  under  the  words — "all  other 
property  which  she  possessed," — by  excepting  out  of  it  £50  of  her 
bank  stock,  which  she  gave  to  her  executors.^ 

3  Siisd.  Pow.  (Sth  ed.)  .'^21:  "But  it  has  been  since  said  that  Walker  v. 
Mackie  does  not  appear  to  be  reroncilenltle  with  other  cases,  particularly 
that  of  Webb  v.  Iloniior.  ?>  IMyl.  &:  Kee.  tl9T.  But  Webb  v.  Hounor,  it  is  sub- 
mitted, is  not  an  authority  against  Walker  v.  Mackie,  nor  is  it  entitled  to 
more  weight  than  the  latter  case,  and  the  writer  is  not  aware  of  any  other 
case  not  reconrileuLlo  with  Walker  and  Mackie.  The  observatiou  alluded  to 
was  made  in  the  case  of  Huslies  v.  Turner,  in  which  Sir  John  Leach  at  the 
Rolls  followed  the  doctrine  in  Walker  v.  Mackie,  Hughes  v.  Turner,  3  Myi. 
&  Kee.  ()GG ;  but  when  upon  the  rehearing  in  Hughes  v.  Turner,  it  was  de- 
cided that  the  testatrix  was  seised  in  fee  of  estates  in  the  counties  she 
mentioned  in  her  will,  the  main  prop  of  his  argument  was  removed,  and 
it  would  have  been  dillicult  to  hold  that  the  mere  gift  of  two  or  three  tritliug 
articles  which  were  in  effect  couii)rised  in  the  power,  the  testatrix's  posses- 
sion of  which  was  not  accounted  for  without  reference  to  the  power,  could 
give  to  a  general  residuary  gift  and  devise  the  operation  of  an  execution 
of  tlie  power."' 

Per  Wood,  Y.  C,  In  re  Davids'  Trusts,  H.  R.  V.  Johns.  40.5.  499:  "The 
testatrix  describes  the  subject  of  the  gift  as  'my  property  to  be  found  in  the 
Three  and  a  Half  per  Cent.  Reduced  Bank  Annuities  now  reduced  to  Three 
and  a  Quarter  per  Cent.,  and  all  other  property  whatsoever  and  wheresoever,' 
which  wou^d.  to  say  the  least,  be  a  very  fanciful  way  of  describing  the  prop- 
erty of  which  she  might  die  possessed.  At  the  date  of  the  will  the  stock 
had  for  many  years  ceased  to  bear  the  old  name,  and  it  would  be  a  strange 
thing  for  a  testatrix,  intending  to  describe  her  possible  future  acquisitions; 

4  Kales  Prop. — 25 


386  POWERS  (Part  3 

GRANT  V.  LYMAN. 

(Court  of  Chancery,  1828.    4  Russ.  292.) 

The  testator,  John  Veal,  made  his  will,  inter  alia,  in  the  following 
words :  "I  give  and  bequeath  my  present  dwelling-house,  garden, 
premises,  and  land  adjoining,  now  in  the  occupation  of  Mr.  Charles 
Baker,  to  Elizabeth,  my  dearly  beloved  wife,  for  her  use  and  benefit 
during  her  life,  and  with  a  power  of  giving  and  disposing  of  the  said 
house  and  premises  after  her  decease,  with  the  limitation  and  condi- 
tion of  her  bequeathing  the  same  to  any  one  of  my  own  family  she  may 
think  proper.  Item,  I  give  and  bequeath  to  my  said  wife  all  my 
household  furniture,  plate,  linen,  books,  and  other  utensils ;  and,  after 
her  decease,  to  any  one  or  more  of  my  own  family  she  may  wish  or 
direct." 

Elizabeth  Veal,  the  testator's  wife,  survived  him,  and  by  her  will 
"gave  and  bequeathed  all  her  leasehold  property,  her  moneys  and 
securities  for  money,  goods,  furniture,  chattels,  personal  estate  and 
effects  whatsoever,  subject  to  the  payment  of  her  just  debts,  funeral 
and  testamentary  expenses  and  legacies,  to  trustees  upon  trust  to  con- 
vert the  same  into  money,  and  to  stand  possessed  of  the  same,  for  the 
only  use  and  benefit  of  John  Grant,  when  he  should  attain  twenty-one ; 
and  if  he  should  die  before  twenty-one,  then  to  the  only  use  and  benefit 
of  the  brothers  and  sisters  of  the  said  John  Grant  who  should  be  living 
at  the  time  of  his  decease,  with  benefit  of  survivorship  between  them." 

It  was  proved  in  the  cause,  that  the  testatrix,  at  the  making  of  her 
will  and  her  death,  had  no  other  leasehold  property  than  the  dwelling- 
house  bequeathed  to  her  by  her  husband.  John  Grant,  the  legatee, 
was  nearly  related  to  the  testator  John  Veal,  but  was  one  degree  more 
remote  than  his  next  of  kin. 

It  was  not  contended  that  John  Grant  could  claim  any  part  of  the 
personal  chattels  of  the  testator  John  Veal,  which  might  be  in  the  pos- 
session of  his  widow  at  her  death,  under  the  general  description  of 
"her  moneys,  &c. ;"  but  it  was  insisted,  that,  inasmuch  as  the  testa- 
trix had  no  other  leasehold  estate  than  the  dwelling-house  specifically 

to  designate  them  by  a  name  which  had  long  been  obsolete.  This  alone  seems 
to  show  that  she  was  referring  to  specitic  stock,  which  liad  once  been  linown 
as  a  sum  in  the  Three  and  a  Half  per  Cents.,  and  was  at  the  date  of  the 
will  converted  into  Three  and  a  Quarter  stock.  This  view  is  confirmed  by 
an  additional  circumstance.  The  power  did  not  authorize  an  exclusive  gift, 
and  accordingly  we  find  two  gifts  of  £10  each  to  the  only  two  other  objects 
of  the  power,  followed  by  the  gift  of  all  the  residue  of  the  stock  and  all  other 
property  to  Charlotte  Elizabeth  Dixon.  The  question  which  I  have  to  decide 
is  whether,  under  these  circumstances,  I  must  not  treat  this  as  a  gift  of  two 
sums  of  £10  out  of  specific  stock,  and  a  specific  gift  of  the  residue  of  such 
stock,  together  witli  all  other  property  of  the  testatrix,  to  the  petitioner. 
The  distinction  is  a  very  nice  one;  but  I  am  of  opinion  that  I  am  justified 
in  holding  the  terms  to  be  suffit>ient  to  constitute  a  specific  disposition  of  an 
existing  fund." 


Ch.  7)  WHAT   WORDS   EXERCISE    A    POWER  387 

described  in  the  testator's  will,  the  bequest  of  all  her  leasehold  prop- 
erty amounted  to  evidence  of  her  intention  to  exercise  her  power  in 
that  respect ;  and  further,  that  John  Grant,  being  one  of  the  testator's 
family,  was  capable  of  taking,  although  not  one  of  his  next  of  kin. 

The  Master  of  the  Rolls  [Sir  John  Leach].  It  is  well  settled, 
that,  if  the  donee  of  a  power  has  no  freehold  estate,  except  that  which 
is  the  subject  of  the  power,  the  will  of  the  donee,  giving  freehold 
estate,  will  be  so  far  deemed  an  execution  of  the  power ;  for  otherwise 
the  will,  as  to  that  property,  would  wholly  fail.  There  is  no  distinc- 
tion between  freeholds  and  leaseholds  in  the  nature  of  the  subjects ; 
the  difference  is  only  in  the  quantity  of  interest :  and  there  does  not 
appear  to  me  to  be  any  solid  ground,  upon  which  it  is  to  be  maintained 
that  a  gift  of  leasehold,  where  the  donee  of  the  power  has  no  other 
leasehold  than  the  subject  of  the  power,  is  not  equally  to  manifest  an 
intention  to  execute  the  power,  as  a  gift  of  freehold  under  the  same 
circumstances.  A  general  gift  of  moneys,  securities  for  moneys,  and 
other  personal  chattels,  which  are  in  their  nature  subject  to  constant 
change  and  fluctuation,  stands  upon  very  different  principles ;  and  as 
to  them,  the  will  must  refer  to  them  as  the  subjects  of  the  power,  or 
they  will  not  pass.* 

[The  Master  of  the  Rolls  then  considered  the  question  whether 
appointment  of  that  moiety  of  the  tenements  in  Surrey,  of  which  she 
the  gift  to  John  Grant  was  good,  and  determined  that  it  was.] 


DENN  d.  NOWELL  v.  ROAKE. 

(House  of  Lords,  1830.     6  Bing.  475.) 

This  cause  having  been  removed  by  a  writ  of  error  from  the  Court 
of  Common  Pleas  to  the  Court  of  King's  Bench,  and  thence  to  the 
House  (pi  Lords,  the  opinion  of  all  the  judges  was  now  delivered  by 

Alexander,  C.  B.  My  Lords, — there  is  no  difference  of  opinion 
among  the  judges  in  this  cause. 

The  question  which  they  have  had  to  consider  in  pursuance  of  your 
Lordships'  order,  is  expressed  in  these  words : 

Whether,  upon  the  facts  stated  in  the  special  verdict  in  this  case,  the 
will  of  Sarah  Trymmer  operated  as  an  execution  of  the  power  of 
was  tenant  for  life,  with  the  power  of  appointment  stated  in  the  special 
verdict. 

The  facts  stated  in  the  special  verdict,  which  it  is  material  to  recol- 
lect, are  these:  In  the  year  1749,  estates,  one  moiety  of  which  is 
now  in  question,  upon  the  death  of  their  father.  Miles  Poole,  descend- 
ed upon  Sarah  the  wife  of  Thomas  Scott,  and  Elizabeth  the  wife  of 
Henry  Roake,  who  were  his  daughters  and  co-heirs,  validly  settled  to 

■t  But  cf.  Webb  v.  Honnor,  1  Jac.  &  W.  352  (1820). 


3SS  POWERS  (Part  3 

the  following-  uses :  one  full  undivided  moiety  to  the  use  of  Thomas 
Scott  for  life ;  the  remainder  to  the  use  of  Sarah  Scott  his  wife  for 
life ;  remainder  to  the  use  of  such  person  or  persons,  and  for  such  es- 
tate and  estates,  as  the  said  Sarah  Scott,  whether  covert  or  sole,  should 
bv  any  deed  or  writing  under  her  hand  and  seal,  to  be  sealed  and 
executed  in  the  presence  of  three  or  more  credible  witnesses,  with  or 
without  power  of  revocation,  or  by  her  last  will  and  testament  in  writ- 
ing, or  any  writing  purporting  to  be  her  last  will  and  testament,  to  be 
by  her  subscribed  and  published  in  the  presence  of  three  or  more  cred- 
ible witnesses,  from  time  to  time  limit,  direct,  or  appoint;  and  for 
want  of  appointment,  to  the  use  of  the  children  of  that  marriage; 
and  in  default  of  issue,  this  moiety  was  limited  to  Elizabeth  Roake  for 
her  life,  with  limitations  to  her  family  analogous  to  those  which  I  have 
mentioned  respecting  Sarah  Scott  and  her  family. 

The  other  undivided  moiety  was  limited  for  the  use  of  Elizabeth 
Roake  for  life,  subject  to  limitations  exactly  of  the  same  nature  and 
description  with  those  I  have  already  mentioned  as  to  the  preceding 
moiety.  It  is  unnecessary  to  detail  them.  Sarah  Scott  survived  her 
first  husband,  Thomas  Scott,  and  afterwards  intermarried  with  one 
John  Trymmer,  whom  she  also  survived. 

She  feecame  a  widow  the  second  time  in  1766.  In  1775  she  pur- 
chased the  other  undivided  moiety  from  the  family  of  Roake.  By 
deeds  dated  in  that  year,  that  moiety  was  conveyed  to  make  a  tenant 
to  praecipe,  in  order  to  the  sufifering  of  a  common  recovery,  which 
recovery  it  was  declared  should  inure  to  the  use  of  Henry  Roake  for 
life,  with  remainder  to  Sarah  Trymmer,  the  widow,  in  fee.  Henry 
Roake  died  in  1777,  and  by  his  death  Sarah  Trymmer  came  into  the 
possession  of  that  undivided  moiety.  From  this  time,  therefore,  to 
the  time  of  her  death,  she  had  the  absolute  and  entire  interest  in  that 
undivided  moiety  of  the  estate  which  had  been  originally  by  the  deeds 
of  1750  limited  to  the  family  of  Roake;  and  as  to  her  own  moiety, 
her  first  husband,  Thomas  Scott,  being  dead,  she  was  tenant  for  life 
of  it,  with  power  of  appointment  or  authority  before  particularly  stat- 
ed, and  in  default  of  appointment  the  estates  stood  limited  to  the  sev- 
eral uses  I  have  also  before  stated. 

Such  were  the  rights,  interests,  and  authorities  which  were  vested  in 
Sarah  Trymmer  when  she  made  the  will  to  which  the  question  put  by 
your  Lordships  refers. 

That  will  is  dated  on  the  6th  of  June  1783,  has  all  the  solemnities 
required  by  the  deed  of  1750,  creating  the  power,  and  is,  so  far  as 
respects  this  subject,  in  the  following  words :  "I  hereby  give  and 
devise  all  my  freehold  estates  in  the  city  of  London  and  county  of 
Surrey,  or  elsewhere,  to  my  nephew  John  Roake,  for  his  life,  on  condi- 
tion that  out  of  the  rents  thereof,  he  do  from  time  to  time  keep  such 
estates  in  proper  and  tenantable  repair ;  and  on  the  decease  of  my  said 
nephew  John  Roake,  I  devise  all  my  estates,  subject  to  and  chargeable 


Ch.  7)  WITAT   WORDS   EXERCISE    A    POWER  389 

with  the  payment  of  £30  a  year  to  Ann,  the  wife  of  the  said  John 
Roake,  for  her  life,  by  even  quarterly  payments  to  and  among  his  chil- 
dren lawfully  begotten,  equally,  at  the  age  of  twenty-one,  and  their 
heirs  as  tenants  in  common ;  but  if  only  one  child  should  live  to  attain 
such  age,  to  him  or  her,  or  his  or  her  heirs,  at  his  or  her  age  of  twen- 
ty-one. And  in  case  my  said  nephew  John  Roake,  should  die  without 
issue,  or  such  lawful  issue  should  die  before  twenty-one,  then  I  devise 
all  the  said  estates,  chargeable  with  such  annuity  of  £30  a  year  to  the 
said  Ann  Roake  for  her  life  in  manner  aforesaid,  to  and  among  my 
nephews  and  nieces  Miles,  Thomas,  John,  James,  and  Sarah  Pinfold, 
and  Susannah  Longman,  or  such  of  them  as  shall  be  then  living,  and 
their  heirs  and  assigns  forever.'' 

My  Lords,  we  are  of  opinion  that  this  devise  is  not  an  execution  of 
the  authority  given  to  Sarah  Trymmer  by  the  settlement  of  1750. 
There  are  many  cases  upon  this  subject,  and  there  is  hardly  any  sub- 
ject upon  which  the  principles  appear  to  have  been  stated  with  more 
uniformity,  or  acted  upon  with  more  constancy.  They  begin  with  Sir 
Edward  Clere's  case  in  the  reign  of  Queen  Elizabeth,  to  be  found  in 
the  Sixth  Report,  and  are  continued  down  to  the  present  time ;  and  I 
may  venture  to  say,  that  in  no  instance  has  a  power  or  authority  been 
considered  as  executed  unless  by  some  reference  to  the  power  or  au- 
thority, or  to  the  property  which  was  the  subject  of  it,  or  unless  iht 
provision  made  by  the  person  intrusted  with  the  power  would  have 
been  ineffectual — would  have  had  nothing  to  operate  upon,  except  it 
were  considered  as  an  execution  of  such  power  or  authority. 

In  this  case  there  is  no  reference  to  the  power,  there  is  no  reference 
to  the  subject  of  the  power,  and  there  is  sufficient  estate  to  answer  the 
devise  without  calling  in  the  aid  of  the  undivided  moiety  now  in  ques- 
tion. All  the  words  are  satisfied  by  the  undivided  moiety  of  which  she 
was  the  owner  in  fee. 

It  is  said  that  the  present  is  a  question  of  intention,  and  so  perhaps 
it  is.  But  there  are  many  cases  of  intention,  where  the  rules  by  which 
the  intention  is  to  be  ascertained  are  fixed  and  settled. 

It  would  be  extremely  dangerous  to  depart  from  these  rules,  in  fa- 
vor of  loose  speculation  respecting  intention  in  the  particular  case. 

It  is,  therefore,  that  the  wisest  judges  have  thought  proper  to  adhere 
to  the  rules  I  have  mentioned,  in  opposition  to  what  they  evidently 
thought  the  probable  intention  in  the  particular  case  before  them. 

I  will  refer  to  one  only,  to  Jones  v.  Tucker,  2  Mer.  533,  before  Sir 
William  Grant.  In  that  case  a  person  had  power  to  appoint  ilOO  by 
her  will;  she  bequeathed  £100  to  the  plaintiff,  and,  it  is  said,  had 
nothing  but  a  few  articles  of  furniture  of  her  own  to  answer  the 
bequest. 

The  language,  which,  according  to  the  reporter.  Sir  W.  Grant  used 
was  this,  "In  my  own  private  opinion,  I  think  the  intention  was  to 


390  POWERS  (Part  3 

give  the  ilOO  which  the  testatrix  had  a  power  to  dispose  of,  but  I  do 
not  conceive  that  I  can  judicially  declare  it  to  have  been  executed." 

The  only  circumstance  that  has  been  pointed  out  as  furnishing  evi- 
dence of  the  testatrix's  intending  to  execute  the  power  in  question,  is 
the  condition  annexed  to  the  devise  to  John  Roake  the  devisee  for  life, 
viz.,  that  he  should,  out  of  the  rents  and  profits  of  the  devised  prem- 
ises, keep  them  in  tenantable  repair. 

I  say  this  is  the  only  circumstance,  because  it  has  been  fixed  by 
many  cases,  that  using  the  words  "my  estates,"  although  the  sub- 
ject of  the  power  might  have  been  at  one  period  the  property  of  the 
person  to  exercise  it,  will  not  be  considered  as  an  execution  of  the 
power. 

We  are  of  opinion  that  the  direction  respecting  the  repairs  has  no 
efifect  in  proving,  according  to  the  authorities,  that  this  testatrix 
meant  to  execute  her  authority  over  the  undivided  moiety  of  this  es- 
tate. 

It  appears  to  us  that  this  would  be  to  contradict  that  long  list  of 
decisions  to  which  I  have  referred,  and  would  be  to  indulge  an  uncer- 
tain speculation  in  opposition  to  positive  rules. 

There  is  no  incongruity  in  directing  a  tenant  for  life  of  an  undivided 
moiety  to  keep  his  share  of  the  premises  in  repair.  A  person  with 
such  an  interest  is  not  without  remedies  for  enforcing  repairs,  and  at 
the  worst  the  devise  would  make  him  liable  as  against  the  remainder- 
man for  dilapidation. 

It  seems,  therefore,  to  my  brothers  as  well  as  to  myself  that  the 
question  which  your  Lordships  have  been  pleased  to  put  to  us  should 
be  answered  in  the  negative,  and  that  the  will  of  Sarah  Trymmer  did 
not  operate  as  an  execution  of  her  power. 

Judgment  of  the  Court  of  King's  Bench  affirmed.^ 

5  In  tlie  Common  Pleas  the  defendant  had  judgment.  Doe  d.  Nowell  v. 
Roake,  2  Bins;.  497  (lS2o) :  but  this  was  reversed  in  the  King's  Bench  on 
writ  of  error,  Denn  d.  Nowell  v.  Roake,  5  B.  &  C.  720  (1S2G).  The  ease  In 
the  House  of  L(yds,  where  the  judgment  of  the  King's  Bench  was  affirmed  in 
accordance  with  the  opinion  of  the  judges,  is  reported  fully,  sub.  nom.  Roake 
V.  Denn,  in  4  f>ligh  N.  S.  1. 

In  the  following  cases  a  residuary  clause  of  general  words  of  devise  were 
held  not  to  amount  to  an  execution  of  the  power.  Nannock  v.  Horton,  7  Ves. 
Jr.  391,  400;  Hollister  v.  Shaw,  40  Conn.  248;  Harvard  College  v.  Balch, 
171  111.  275,  2S3,  49  N.  E.  543;  Md.  Mut.  Ben.  Soc.  v.  Clcndinen.  44  Md.  429, 
431,  22  Am.  Rep.  52;  Burleigh  v.  Clough,  52  N.  H.  207,  13  Am.  Rep.  23; 
Meeker  v.  Breintnall,  38  N.  J.  Eq.  345;  Bingham's  Appeal,  64  Pa.  345;  Mason 
V.  Wheeler,  19  R.  I.  21,  31  Atl.  420,  01  Am.  St.  Rep.  734;  Bilderback  v. 
Boyce,  14  S.  C.  528. 

In  In  re  AVait,  30  Ch.  617,  621,  tlie  testator  having  a  special  jwwer  to 
appoint  by  will  two  estates  at  B.  and  S.  respectively  and  also  a  power  to 
appoint  some  shares  in  the  B.  Colliery  by  his  will  made  gifts  of  "my  estate 
at  B."  and  of  "my  estate  at  S."  and  another  gift  of  "all  my  share  and  intei-- 
est  in  the  B.  H.  &  W.  Colliery  Cos."  He  had  no  property  of  his  own  at 
either  B.  or  S.,  but  he  had  some  shares  of  his  own  in  the  B.  Colliery.  Held, 
that  the  power  was  exercised  not  only  as  regarded  the  estates  at  B.  and  S., 


Ch.  7)  WHAT   WORDS   EXERCISE    A    TOWER  391 

In  re  MILLS. 
(Chancery  Division,  1886.     L.  R.  ,34  Ch.  Div.  ISG.) 

Thomas  Mills,  who  died  in  1865,  by  his  will  dated  in  1860,  devised 
certain  real  estate  to  trustees  upon  trust  for  his  widow  for  life,  and 
then  for  his  son  William  Braithwaite  Mills  for  life,  and  after  his  death 
for  such  one  or  more  of  his  children  or  other  issue  born  in  his  life- 
time as  he,  the  son,  should  by  deed  or  will  appoint ;  and,  in  default, 
upon  trust  for  the  son's  children  equally. 

The  widow  died  in  1880. 

William  Braithwaite  Mills,  by  his  will,  dated  the  13th  of  November, 
1884,  after  appointinp;-  trustees  and  executors,  and  giving  his  furniture 
and  other  household  effects  to  his  wife  absolutely,  proceeded  as  fol- 
lows :  "I  devise  and  bequeath  all  my  real  and  personal  estate  not 
hereby  otherwise  disposed  of  unto  my  trustees  upon  trust,"  to  sell 
and  convert  and  out  of  the  proceeds  to  pay  his  funeral  and  testamenta- 
ry expenses,  debts  and  legacies,  and  to  pay  the  income  of  a  sum  of 
£7,000,  part  of  such  proceeds,  to  his  widow  while  she  remained  unmar- 
ried, with  remainder,  as  to  the  capital,  in  trust  for  his  children  by  her, 
or  their  issue,  as  his  wife  should  appoint,  and,  in  default,  in  trust  for 
his  children  by  her  who  being  sons  should  attain  twenty-one  or  daugh- 
ters attain  that  age  or  marry,  in  equal  shares.  And  the  testator  fur- 
ther directed  his  trustees  to  hold  the  sum  of  £3,500  in  trust  for  his 
daughter  Helena,  and  the  remainder  of  the  residuary  trust  funds  in 
trust  for  his  son  John  Harker  Mills,  but  if  he  should  die  before  at- 
taining twenty-five,  then  for  such  child  or  children  of  John  H.  Mills 
as  should  survive  him  and  being  sons  attain  twenty-one  or  daughters 
attain  that  age  or  marry,  and  if  no  such  child  then  for  the  testator's 
other  children  in  equal  shares.  Then  followed  a  direction  settling  the 
shares  and  interests  of  his  daughters,  including  the  £3,500,  for  their 
separate  use  without  power  of  anticipation,  with  remainders  to  their 
children  as  they  should  appoint,  and  in  default,  to  such  children. 

W.  B.  Mills  died  on  the  9th  of  January,  1886,  leaving  surviving 
him  his  widow  and  four  children,  namely,  his  son  John  Harker  Mills 
and  daughter  Helena  Mills,  both  by  a  former  wife,  and  two  daughters 
by  his  present  widow.  Neither  at  the  date  of  his  will  nor  at  his  death 
had  he  any  real  estate  of  his  own. 

but  also  as  to  the  shares  in  the  B.  Colliery.     Contra:    Lewis  v.  Lewellyn,  1 
T.  &  It.  104 :    Napier  v.  Napier,  1  Sim.  2S. 

Such  words  in  tlie  instriinieut  of  appointment  as  "tlie  residue  of  my  es- 
tate belonjiinj;  to  me  at  the  time  of  my  decease  or  over  wliich  I  may  have 
any  power  of  disposition  or  control,"  or  "1  bequeath  all  my  property  over 
which  I  Iiave  any  disposing  jiower,"  have  been  lield  sullicient  to  exercise 
tlie  power.  In  re  Teape's  Trust,  L.  It.  IG  E(i.  442 ;  Thornton  v.  Thornton, 
L.  R.  20  E(i.  ,599.  But  the  words  "all  my  real  and  personal  estate  to  which 
I  may  be  possessed  or  entitled  or  over  which  I  may  liave  'any  bcneticial 
power  of  disposition'  "  has  been  held  insuthcient  to  execute  a  special  power. 
Ames  V.  Cadogan,  L.  R.  12  Ch.  Div.  868. 


392  POWERS  (Part  3 

The  question  was  whether  the  general  devise  in  W.  B.  ]Mills'  will 
operated  as  an  exercise  of  the  special  power  of  appointment  given  him 
by  the  will  of  his  father,  Thomas  Mills. 

To  have  this  question  decided,  the  trustees  of  the  will  of  Thomas 
Mills  took  out  an  originating  stmimons  against  the  widow,  children, 
and  trustees  of  the  will  of  W.  B.  Mills,  for  a  declaration  whether  the 
latter  will  did  or  did  not  execute  to  any  and  what  extent  the  power 
given  to  W.  B.  Mills  by  the  former  will,  and  who  were  now  beneficially 
entitled  to  the  property  the  subject  of  the  power ;  and  how  the  costs  of 
the  application  should  be  provided  for. 

Kay,  J.  The  short  question  in  this  case  is  whether  a  special  power 
of  appointing  real  estate  among  children  or  issue  is  exercised,  since 
the  Wills  Act,  by  a  general  devise  of  real  estate  where  the  appointor 
at  the  date  of  his  will  had  no  real  estate  of  his  own? 

[His  Lordship  then  stated  the  facts  and  continued:] 

There  is  no  reference  in  the  son's  will  to  the  power  of  appointment 
or  to  the  property  comprised  in  it ;  but  at  the  date  of  the  will,  and  also 
at  the  time  of  his  death,  he  had  no  real  estate  of  his  own.  He  left 
children  by  a  former  wife,  besides  children  of  the  wife  mentioned  in 
his  will. 

It  is  argued  that  before  the  Wills  Act,  1  Vict.  c.  26,  this  wovtld  have 
been  an  exercise  of  the  power,  because  at  the  date  of  the  will  he  had 
no  other  real  estate,  and  the  general  devise  in  the  will  under  the  old 
law  must  therefore  be  treated  as  if  it  had  been  a  devise  of  the  particu- 
lar real  estate  which  was  the  subject  of  the  power. 

But  it  is  said,  on  the  other  hand,  that  the  reason  for  this  was  because 
otherwise  that  devise  could  have  no  possible  operation,  whereas,  this 
will  being  since  the  W'ills  Act,  the  testator  might  have  acquired  real 
estate  of  his  own  after  the  date  of  the  will  which  would  pass  by  such  a 
devise. 

The  case  of  personal  estate  under  the  old  law,  it  is  suggested,  could 
never  be  precisely  analogous,  because  it  could  hardly  happen  that  a 
testator  could  at  the  time  of  his  will  be  without  some  personal  estate. 
However,  it  is  certain  that  under  the  old  law  a  general  bequest  of  per- 
sonal estate  would  not  operate  as  the  exercise  of  a  power  of  appoint- 
ment of  personal  property,  even  where  it  was  clear  that  at  the  date  of 
the  will  the  bequests  in  it  could  not  be  satisfied  out  of  the  testator's 
own  personal  estate.  Parol  evidence  of  that  fact  was  not  admissible. 
Jones  V.  Tucker,  2  Mer.  533 ;  Jones  v.  Curry,  1  Sw.  66. 

In  Nannock  v.  Horton,  7  Ves.  391,  399,  where  the  testator  had 
power  to  appoint  £4,000  stock  by  will,  he,  by  his  will,  gave  various 
sums  of  stock.  Lord  Eldon  in  his  judgment  contrasts  the  case  of  per- 
sonal estate  thus :  "Every  gift  of  land,  even  a  general  residuary  devise, 
is  specific.  Only  that,  to  which  the  party  is  entitled  at  the  time,  can 
pass.  But,  as  to  personal  estate,  he  may  give  that,  which  he  has  not, 
and  never  may  have ;    and  at  all  events  whatever  he  may  happen  to 


Ch.  7)  wnAT  WORDS  exercise  a  power  393 

have  at  his  death  will  pass.  He  might  have  had  stock,  before  he  died; 
though  he  might  have  had  none  at  the  date  of  the  codicil." 

It  is  strange  that  the  question  should  not  have  been  determined,  but 
counsel  have  not  cited,  nor  can  I  find,  any  decision  precisely  in  point. 

It  is  purely  a  question  of  intention.  Did  the  testator  intend  to 
exercise  his  power?  Bennett  v.  Aburrow,  8  Ves.  609,  615;  Denn  v. 
Roake,  6  Bing.  475. 

The  intention  of  a  testator  can  only  be  inferred  from  the  words  of 
his  will,  and  from  the  circumstances  which  at  the  time  of  executing  it 
were  known  to  him,  and  which  the  court,  putting  itself  in  his  place, 
is  bound  to  regard. 

Here,  at  the  date  of  his  will,  the  testator  had  no  real  estate.  By  his 
will  he  in  general  words  gives  "all  my  real  and  personal  estate." 
Power  and  property  are  completely  distinct ;  and  if  he  had  at  that 
time  any  real  estate  it  is  clear  the  power  would  not  have  been  exer- 
cised. The  other  principal  facts  bearing  upon  the  question  of  his  in- 
tention are  these.  The  will  contains  a  gift  out  of  the  bulk  of  the  pro- 
ceeds of  his  real  and  personal  estate  to  his  wife,  who  was  not  an  ob- 
ject of  the  power,  and  a  direction  out  of  the  same  fund  to  pay  funeral 
an(}  testamentary  expenses  and  debts,  which  could  not  be  done  out  of 
the  property  subject  to  this  special  power.  The  provisions  for  issue 
of  children  are  not  confined  to  issue  bom  in  his  lifetime,  to  whom 
alone  under  the  terms  of  the  power  he  could  make  a  valid  appoint- 
ment. All  these  are  indications  which  tend  to  prove  that  it  was  not 
his  intention  to  exercise  this  special  power.  Doe  v.  Bird,  11  East,  49, 
shows  that  such  indications  ought  to  be  regarded. 

Besides,  I  must  suppose  him  acquainted  with  the  law  which  enabled 
him  by  a  general  devise  to  pass  real  estate  he  might  acquire  after  the 
date  of  his  will :  in  fact  most  people,  I  suppose,  are  now  aware  of  this. 
It  is  the  intention  at  the  date  of  his  will  which  must  be  considered. 
If  the  power  was  exercised  by  this  general  devise,  any  real  estate 
acquired  by  the  testator  afterwards  would  also  pass,  unless  that  gen- 
eral devise  could  be  read  as  referring  exclusively  to  the  property  sub- 
ject to  the  power,  which,  since  the  Wills  Act,  seems  impossible.® 

<-'  In  Wooster  v.  Cooper,  59  N.  J.  Eq.  204,  224.  45  Atl.  3S1.  aso.  Gray,  Y.  C. 
says:  "It  is  not  so  clear,  as  the  learned  counsel  for  the  defendant  contends, 
that  a  general  devi.se  of  lands  by  the  donee  of  a  power,  who  owns  no  lauds 
at  the  date  of  the  will,  nuist,  in  New  Jersey,  be  held  to  have  been  made  in 
view  of  the  power  and  with  an  intention  to  execute  it.  The  theory  upon 
which  the  alx)ve-recited  cases  go,  is,  that  the  testatrix  must  liave  contem- 
plated the  execution  of  the  power,  because  when  she  made  her  will  devising 
real  estate  she  had  no  land  of  her  own,  and  that  within  the  power  was  the 
only  land  which  she  had  at  her  disposal,  and  therefore  she  intended  by 
the  devise  to  execute  the  power.  This  theory  had  support  as  indicative  of 
the  testator's  intent  at  the  time  of  making  his  will,  so  long  as  the  state  of 
the  law  was  such  that  a  devise  passed  only  those  lauds  (whereof  the  testa- 
tor died  seized)  which  he  owned  at  the  time  of  the  making  of  his  will.  Smith 
v.  Curtis,  29  N.  J.  Law.  352.  This  condition  of  the  law  was,  however,  chang- 
ed by  the  statute  of  1851  (Gen.  Stat.  p.  37(51,  §  24),  which  declared  that 
lands  whereof  the  testator  died  seized,  though  acquired  after  the  making  of 


394  POWERS  (Part  3 

But  the  cases  under  the  old  law  show  plainly  that,  if  the  devise  did 
operate  upon  property  belonging  to  the  testator,  general  words  such 
as  these  would  not  exercise  a  power.  The  reason  for  holding  that 
such  words  did  exercise  the  power  was,  that  otherwise  they  could  not 
have  any  operation.  Under  the  old  law  a  general  devise  never  both 
passed  property  of  the  testator  and  also  exercised  a  power,  unless 
that  was  shown  to  be  the  intention  by  some  other  indication. 

The  language  of  Chief  Baron  Alexander  in  the  House  of  Lords  in 
Denn  v.  Roake,  6  Bing.  478,  is  this :  'T  may  venture  to  say,  that  in 
no  instance  has  a  power  or  authority  been  considered  as  executed 
unless  by  some  reference  to  the  power  or  authority,  or  to  the  property 
which  was  the  subject  of  it,  or  unless  the  provision  made  by  the  person 
entrusted  with  the  power  would  have  been  ineffectual — would  have 
had  nothing  to  operate  upon,  except  it  were  considered  an  execution 
of  such  power  or  authority.'' 

Sir  William  Grant  in  Bennett  v.  Aburrow  says  that  the  intention 
may  be  collected  from  other  circumstances  than  an  express  reference 
to  the  power,  "as,  that  the  will  includes  something  the  party  had  not 
otherwise  than  under  the  power  of  appointment ;  that  a  part  of  the 
will  would  be  wholly  inoperative,  unless  applied  to  the  power."       , 

It  is  impossible  to  say  that  a  general  devise  is  wholly  inoperative  if 
it  passes  real  estate  acquired  afterwards ;  and  if  it  might  have  that 
operation  when  made,  it  is  difificult  to  treat  it  as  wholly  ineffectual 
because  the  testator  at  the  date  of  his  will  had  no  real  estate.  Cer- 
tainly it  would  at  least  be  potentially  operative.  You  could  not  say  it 
"would  be  wholly  inoperative." 

A  testator  well-advised,  though  he  had  no  real  estate  at  the  time 
of  making  his  will,  and  though  he  desired  not  to  exercise  a  special 
power,  might  still  wish  to  insert  in  his  will  a  general  devise  of  real 
estate. 

Perhaps  the  case  which  most  nearly  touches  the  point  is  Matting- 
ley's  Trusts,  2  J.  &  H.  426,  in  which  it  was'decided  that  under  the  new 
law  a  special  power  to  appoint  stock  among  children  was  not  exercised 
by  appointment  of  "my  money  in  the  funds,"  although  the  testator  at 

a  will,  should  pass  by  a  general  devise  unless  a  contrary  intention  was  ex- 
pressed. This  statute  destroys  the  hypothesis  upon  which  the  above-stated 
theory  depends,  for  since  a  general  devise  will  now  pass  not  only  the  lands 
left  by  the  testator,  which  he  owned  at  the  date  of  his  will,  but  also  those 
which  he  acquired  after  that  date,  it  is  no  longer  true  that  the  will  of  a 
donee  of  a  power  having,  at  the  time  of  making  his  will,  no  lands  other 
than  those  disposable  within  the  power,  would  be  inoperative  unless  applied 
to  the  power.  The  will  may  now  operate  at  the  time  of  the  testator's  death 
upon  lands  not  within  the  power,  which  he  acquired  after  the  making  of 
the  will.  The  testator  by  his  general  devise  may  have  intended  to  devise 
such  after  acquired  lands,  and  as  this  possibility  satisfies  all  the  provisions 
of  the  will,  without  applying  it  to  the  power,  it  can  no  longer  be  main- 
tained that  a  testator,  who  is  the  donee  of  a  power,  must,  ex  necessitate, 
be  held  to  have  intended  to  execute  the  power  when  making  a  general  de- 
vise of  land." 


Ch.  7)  WHAT   WORDS   EXERCISE    A    POWER  395 

the  date  of  the  will  had  no  stock  of  his  own ;  because,  as  the  Vice- 
Chancellor  said,  if  it  were  held  that  those  words  pointed  to  a  specific 
fund,  it  would  follow  that  they  would  not  pass  any  after-acquired  prop- 
erty of  that  description. 

That  is  to  say,  the  words  which  are  read  as  exercising  the  power  in 
the  case  of  personal  estate  must  be  such  as  refer  to  the  property  com- 
prised in  the  power  exclusively,  and  would  not  be  operative  upon  aft- 
er-acquired personal  estate. 

This  was  precisely  the  reason  why  a  general  devise  of  real  estate 
under  the  old  law  effected  the  execution  of  a  power  where  the  testator 
had  no  real  estate  at  the  time.  The  will  was  read  as  though  it  con- 
tained a  specific  devise  Of  the  real  estate  which  was  the  subject  of  the 
power,  and  that  specific  devise  of  course  could  not,  under  any  circum- 
stances, pass  any  other  estate. 

Speaking  for  myself,  I  have  the  strongest  objection  to  anything  like 
a  general  rule  for  discovering  intention.  To  say  that,  wherever  a  tes- 
tator making  a  will  since  the  Wills  Act  has  no  real  esiate  at  the  date 
of  his  will,  that  testator  shall  be  taken  to  have  intended  by  a  general 
devise  to  exercise  a  special  power  over  real  estate,  would  to  my  mind 
be  so  unreasonable  as  to  be  irrational.  I  believe  that  such  a  rule 
would  defeat  the  intention  at  least  as  often  as  it  would  effectuate  it. 

There  being  no  such  decision  upon  a  will  made  since  the  Wills  Act, 
the  former  authorities  are  not  precisely  in  point ;  and  I  feel  emanci- 
pated from  any  restriction  they  might  put  upon  my  judgment. 

The  far  better  and  safer  rule,  in  my  opinion,  is  in  each  case  to  con- 
sider and  weigh  the  words  of  the  particular  will  and  the  surrounding 
circumstances  at  the  date  of  it,  amongst  which  the  enlarged  operation 
of  a  general  devise  is  a  most  important  one. 

It  has  been  suggested  that  the  Wills  Act  shows  an  intention  rather 
to  extend  the  operation  of  wills  in  exercising  powers — at  least  as  to 
general  powers,  which  by  sect.  27  are  to  be  considered  as  exercised  by 
a  general  devise  or  bequest  unless  a  contrary  intention  appear  by  the 
will — and  that  therefore  a  special  power  should  be  still  treated  as  ex- 
ercised in  all  cases  where  it  would  have  been  so  treated  under  the  old 
law.  The  argument  involves  a  fallacy.  If  the  reason  for  presuming 
the  intention  of  the  testator  to  exercise  the  special  power  is  taken 
away  by  other  provisions  in  the  Act,  the  presumption  ceases ;  and  the 
fact  that  general  powers  are  specially  provided  for  affords  no  indica- 
tion that  the  Act  intended  to  preserve  the  presumption  as  to  the  exer- 
cise of  special  powers  when  it  destroyed  the  reason  for  that  presump- 
tion. 

On  the  best  consideration  I  can  give  in  this  case,  to  the  words  of  the 
will,  and  to  the  circumstances  of  the  testator  at  the  time,  I  do  not 
believe  he  intended  to  exercise  this  special  power.  If  not  exercised 
the  property  would  go  in  default  amongst  all  his  children:  it  is  rea- 
sonable to  suppose  he  desired  not  to  disturb  that  provision.     I  believe 


396  POWERS  _  (Part  3 

either  that  he  forc^ot  all  about  the  power  or  that  he  desired  not  to  ex- 
ercise it.  If  he  forgot  the  power  but  intended  to  pass  the  property 
subject  to  it,  possibly  that  might  be  sufficient ;  but  I  cannot  find  any- 
thing to  satisfy  me  that  this  was  his  intention. 

The  burden  of  proof  is  on  those  who  assert  affirmatively  that  the 
power  was  exercised:  the  court  must  be  satisfied  of  this  by  sufficient 
evidence.  I  am  not  so  satisfied.  The  inclination  of  my  opinion  is 
that  the  testator  did  not  intend  to  exercise  this  special  power. '^ 

The  costs  will  come  out  of  the  general  residue  of  the  testator's 
estate. 


AMORY  V.  MEREDITH. 
(Supreme  Judicial  Court  of  Massachusetts,  1863.     7  Allen,  397.) 

Hoar,  J.  The  testatrix,  Miss  Elizabeth  Amory,  being  in  feeble 
health,  conveyed  all  her  real  and  personal  estate  to  trustees,  upon  the 
trust  to  manage  the  property  and  pay  the  income  of  it  to  her  during 
her  life ;  to  reconvey  the  whole  to  her  whenever  she  and  the  trustees 
should  think  it  expedient  to  terminate  the  trust ;  or,  upon  her  decease 
before  its  termination,  to  convey  it  to  such  persons  as  she  should  by 
her  last  will  designate;  or,  upon  her  death  intestate,  to  her  heirs  at 
law.  She  afterward  inherited  a  small  amount  of  real  and  personal 
estate  which  was  not  included  in  the  trust,  and  the  trust  was  not  termi- 
nated during  her  life.  By  her  last  will  she  gave  and  devised  one  half 
of  all  the  estate,  real,  personal  and  mixed,  of  which  she  should  die 
seised  or  possessed,  to  trustees,  for  the  benefit  of  the  family  of  a 
brother;  one  tenth  in  trust  for  a  sister  and  her  children;  and  the 
residue  of  her  said  estate  to  four  brothers  and  sisters  named  in  the 
will.  This  suit  is  brought  by  her  executors  and  trustees  to  obtain  the 
direction  of  the  court  in  the  execution  of  their  trusts,  on  account  of 
the  conflicting  claims  of  the  heirs  at  law  and  the  devisees  under  the 
will.  And  the  question  is,  whether  the  real  and  personal  estate  em- 
braced in  the  deed  of  trust  will  pass  under  the  will  ? 

The  answer  to  this  question  is  to  be  sought  by  ascertaining  the  in- 
tent of  the  testatrix  as  manifested  by  the  will ;  and  this  intention  be- 
ing once  ascertained,  effect  is  to  be  given  to  it  accordingly. 

We  are  therefore  to  decide  whether  the  language  of  Miss  Amory's 
will,  construed  in  reference  to  all  the  property  in  wdiich  she  had  a 
legal  or  equitable  interest  at  the  time  it  was  made,  and  at  the  time  of 
her  death,  shall  be  held  to  include  in  its  disposition  the  property  of 
which  she  had  a  power  of  appointment. 

Without  reviewing  in  detail  the  numerous  English  cases,  it  is  per- 
haps sufficient  to  say  that,  according  co  the  doctrine  of  the  English 
courts  of  chancery,  the  will  would  certainly  not  be  a  good  execution 

7  Accord :    In  re  Williams,  42  Ch.  Div.  93. 


Ch.  7)  WHAT   WORDS   EXERCISE    A    POWER  397 

of  the  power.  The  cases  are  summed  up  and  reviewed  in  Doe  v. 
Roake,  2  Bin.c:.  497,  and  in  Hlagj^e  v.  Miles,  1  Story  R.  426,  Fed.  Cas. 
No.  1479.  The  distinction  between  "power"  and  "property"  is  care- 
fully preserved  throus^h  all  of  them ;  and  the  refinements  and  subtle- 
ties to  which  this  distinction  leads  are  great  and  perplexing.  The 
general  rule  is  thus  stated  by  Chancellor  Kent,  in  his  Commentaries : 
"In  the  case  of  wills,  it  has  been  repeatedly  declared,  and  is  now  the 
settled  rule,  that  in  respect  to  the  execution  of  a  power,  there  must  be 
a  reference  to  the  subject  of  it,  or  to  the  power  itself ;  unless  it  be  in 
a  case  in  which  the  will  would  be  inoperative  without  the  aid  of  the 
power,  and  the  intention  to  execute  the  power  became  clear  and  mani- 
fest." "The  intent  must  be  so  clear  that  no  other  reasonable  intent 
can  be  imputed  to  the  will ;  and  if  the  will  does  not  refer  to  a  power, 
or  the  subject  of  it,  and  if  the  words  of  the  will  may  be  satisfied  with- 
out supposing  an  intention  to  execute  the  power,  then,  unless  the  in- 
tent to  execute  the  power  be  clearly  expressed,  it  is  no  execution  of 
it."  4  Kent  Com.  (6th  ed.)  335.  And  Mr.  Justice  Story,  in  Blagge  v. 
Miles,  gives  three  classes  which  "have  been  held  to  be  sufficient  dem- 
onstrations of  an  intended  execution  of  a  power:  (1)  Where  there 
has  been  some  reference  in  tne  will,  or  other  instrument,  to  the  pow- 
er; (2)  or  a  reference  to  the  property  which  is  the  subject  on  which 
it  is  to  be  executed ;  (3)  or  where  the  provision  in  the  will  or  other 
instrument,  executed  by  the  donee  of  the  power,  would  otherwise  be 
ineffectual,  or  a  m.ere  nullity;  in  other  words,  it  w^ould  have  no  opera- 
tion, except  as  an  execution  of  the  power."  He  adds  that  these  are 
not  all  the  cases,  and  that  it  was  ahvays  open  to  inquire  into  the  in- 
tention under  all  the  circumstances ;  while  he  agrees  that  "the  inten- 
tion to  execute  the  power  must  be  apparent  and  clear,  so  that  the 
transaction  is  not  fairly  susceptible  of  any  other  interpretation."  And 
it  has  uniformly  been  held  that  a  mere  residuary  clause  gave  no  suffi- 
cient indication  of  intention  to  execute  a  power. 

But  the  inconvenience  and  injustice  to  which  the  English  doctrine 
gave  rise  have  been  a  constant  subject  of  remark  by  the  judges  who 
applied  it.  Thus  in  Jones  v.  Tucker,  2  Meriv.  533,  a  case  wdiich  per- 
haps illustrates  as  well  as  any  how  far  the  rigid  application  of  a  rule 
can  go  in  misconstruction,  where  a  woman  had  a  power  to  appoint 
£100  by  her  will,  and  bequeathed  to  the  plaintiff  ilOO,  having  no  prop- 
erty of  her  own  to  answer  the  bequest  except  a  few  articles  of  furni- 
ture. Sir  William  Grant  said :  "In  my  owm  private  opinion,  I  think  the 
intention  was  to  give  the  £100  which  the  testatrix  had  a  power  to  dis- 
pose of,  but  I  do  not  conceive  that  I  can  judicially  declare  it  to  have 
been  executed." 

So  in  Hughes  v.  Turner,  3  Myl.  &  K.  688,  Sir  John  Leach  remark- 
ed: "The  question  in  this  case  arises  from  the  distinction  which  has 
been  adopted  and  settled  in  courts  of  equity  between  the  power  of 
disposing  of  property,  and  the  technical  right  of  property ;   a  distinc- 


398  POAVERS  (Part  3 

tion  which  has  been  regretted  by  eminent  judges,  and  which  as  Lord 
Eldon  has  observed,  although  professed  to  be  adopted  in  order  to 
further  the  intention  of  the  testator,  in  nine  cases  out  of  ten  defeats 
that  object."  He  held  the  power  executed.  But  after  his  death,  the 
case  was  reheard  by  his  successor  as  blaster  of  the  Rolls,  who  re- 
versed the  judgment  with  the  remark,  "I  fear  that  the  intention  of  the 
testatrix  may  be  defeated  by  my  decision." 

Lord  St.  Leonards,  the  highest  authority  on  any  question  relating 
to  this  branch  of  the  law,  says  that,  "in  reviewing  the  cases,  it  is  im- 
possible not  to  be  struck  with  the  number  of  instances  where  the  in- 
tention has  been  defeated  by  the  rule  distinguishing  power  from  prop- 
erty."   Sugden  on  Powers  (8th  Ed.)  338. 

It  is  not  surprising  that  a  course  of  decisions  obnoxious  to  such 
criticisms  should  be  at  length  controlled  by  legislation.  By  St.  7 
Will.  IV  and  1  Vict.  c.  26,  §  27,  it  was  declared  that  a  general  devise 
of  real  or  personal  estate,  in  wills  thereafter  made,  should  operate  as 
an  execution  of  a  power  of  the  testator  over  the  same,  unless  a  con- 
trary intention  should  appear  on  the  will.  Upon  this  English  Statute 
Judge  Story  observes,  in  a  note  to  Blagge  v.  Miles :  "The  doctrine, 
therefore,  has  at  last  settled  down  in  that  country  to  what  would 
seem  to  be  the  dictate  of  common  sense,  unaffected  by  technical  nice- 
ties."   1  Story  R.  458,  note. 

We  are  aware  of  no  decisions  in  this  commonwealth,  binding  on  us 
as  an  authority,  which  should  compel  us  to  adopt  a  rule  of  construc- 
tion likely,  in  a  majority  of  cases,  to  defeat  the  intention  it  is  designed 
to  ascertain  and  efifectuate.  Seeking  for  the  intention  of  the  testator, 
the  rule  of  the  English  Statute  appears  to  us  the  wiser  and  safer  rule ; 
certainly  when  applied  to  cases  like  the  one  now  under  consideration, 
where  the  testatrix  is  dealing  with  property  which  had  been  her  own, 
and  of  which  she  had  the  beneficial  use,  as  well  as  the  power  of  dis- 
posal. 

The  point  to  be  determined  is  simply  this :  Did  Aliss  Aniory  mean 
to  dispose  of  the  property  held  under  the  deed  of  trust,  by  the  terms 
of  her  will,  in  devising  all  the  estate  of  which  she  should  be  possessed 
at  her  death  ?  We  can  have  no  doubt  that  she  did.  It  was  originally 
her  property  by  inheritance.  She  received  the  income  of  it  during 
her  life.  She  had  the  complete  power  of  disposal  over  it  by  will ;  and 
it  constituted  the  great  bulk  of  the  property  over  which  she  had  testa- 
mentary control.  If  she  died  intestate,  like  the  rest  of  her  property, 
it  was  to  go  to  her  heirs.  The  trust  had  been  created  merely  with  a 
view  to  relieve  her,  when  in  feeble  health,  from  the  trouble  of  man- 
aging and  investing  her  estate,  and  with  a  provision  that  the  trust 
should  be  terminated  whenever,  in  her  opinion  and  that  of  the  trus- 
tees, it  might  be  expedient.  The  rest  of  her  property  had  been  trans- 
ferred, though  not  to  the  legal  ownership,  yet  to  the  care  and  custody 
of  the  sarne  trustees ;  had  been  treated  in  precisely  the  same  manner 


Ch.  7)  U'lIAT   WORDS   EXERCISE    A    POWER  399 

with  that  inchided  in  the  trust;   and  we  can  see  no  reason  to  believe 
that  it  was  regarded  by  her  in  any  different  light. 

The  decree  wnll  therefore  direct  the  trustees  to  convey  the  property 
held  by  them  in  accordance  with  the  devises  and  bequests  of  the  will.® 

8  In  the  following  cases  it  was  held,  on  the  special  context  of  the  ap- 
pointing instnunont  and  the  surrounding  circumstances,  that  the  power  was 
well  exorcised:  Funk  v.  Eggleston.  !)2  111.  Slo,  84  Am.  Kep.  130;  Warner 
V.  Connecticut  Mut.  Life  Ins.  Co.,  109  U.  S.  357,  3G7,  3  Sup.  Ct.  221,  27  L. 
Ed.  9tJ2 ;    Lee  v.  Simpson.  134  T.  S.  572.  10  Sup.  Ct.  031,  33  L.  Ed.  103S. 

In  Stone  v.  Forbes,  189  Mass.  1G3,  1G9,  75  N.  E.  141,  142,  the  court,  by 
Morton,  J.,  said: 

"It  is  settled  in  this  commonwealth  that  a  general  power  of  appointment 
is  well  executed,  in  the  absence  of  anything  to  show  a  contrarj-  intention, 
by  a  geiun-al  residuary  clause  in  the  will  of  the  donee  of  the  power.  Amcu'y 
V.  Meredith.  7  Allen,  397;  Willard  v.  Ware,  10  Allen.  2<!3  ;  Bangs  v.  Smith, 
98  Mass.  270;  Sewall  v.  Wijmer.  1.32  Mass.  131:  Cumston  v.  P.artlett.  149 
Mass.  243  [21  N.  E.  373]  ;  Hassam  v.  Hazen,  156  Mass.  93  [30  N.  E.  409]. 
And,  whatever  mav  have  been  the  case  formerly,  that  is  now  the  law  in 
England.  Airey  v.  Bower,  12  App.  Cas.  263;  Boyes  v.  Cook,  14  Ch.  D.  53. 
And  both  in  this  commonwealth  and  in  England  the  fact  that  the  power  is 
create^after  the  execution  l)f  the  will  does  not  prevent  the  will  from  op- 
eraniig~as  an  execution~of  the  power.  WilUird  v.  Ware7'TirXnen,~263 ;  Os- 
good TrBliss.  141  Mass.  474  [6  >.'.  E.i;27,  55  Am.  Rep.  488] ;  Airey  v.  Bower, 
ubi  supra.  In  England  these  results  have  been  arrived  at  by  means  of 
statutory  enactments.  But  in  this  commonwealth  they  have  been  reached 
by  the  application  of  general  principles.  Inthis__caae,_lao_weA'erj^  the  power 
is  a  special  one,  and  it  is  contended  that  cTIfferentrules  apply.  It  is  con- 
ceded  rnat.  in  regard  to  special  as  well  as  in  regard  to  general  powers,  the 
question  is  one  of  intention  on  the  part  of  the  donee  of  the  power.  But  it  is 
contended  that  those  claiming  under  a  si^ecial  power  must  show  athrmative- 
ly  that  the  donee  intended  to  execute  it.  that  it  is  doubtful  whether  a  special 
power  can  be  exercised  by  a  will  executed  before  the  power  was  created,  and 
that  there  is  nothing  in  the  case  before  us  which  fairly  warrants  the  con- 
clusion that  the  donee  of  the  power  intended  to  execute  it. 

"On  principle  there  would  seem  to  be  no  just  ground  for  a  distinction 
between  general  and  special  powers  so  far  as  relates  to  the  execution  of  the 
power  before  or  after  it  is  created.  It  may  be  that  by  reason  of  its  condi- 
tions or  limitations  the  reasons  are  stronger  for  holding  that  a  special 
power  cannot  be  executed  by  anticipation  than  for  holding  that  a  general 
power  cannot;  but  they  do  not  seem  to  us  enough  stronger  to  warrant  lis  in 
saying  that  in  one  case  the  power  can  be  executed  by  anticipation  and  in 
the  other  that  it  cannot.  A  general  power  of  appointment  is  hardly  Jess 
within  the  range  of  expectation  than  a  special  power.  Before  the  MUlflnct 
so  called,  1  Yict.  c.  26,  §  27,  it  was  the  law  of  England  that  a  party  claim- 
ing iinder  a  power  must  show  that  the  donee  intended  to  execute  it.  the 
presumption  being  that  he  had  not  executed  it  iniless  the  contrary  plainly 
appeared.  Amorv  v.  Meredith,  7  Allen,  397;  Mills  v.  Mills,  34  Ch.  D.  180, 
194;    Foulkes  v.  Williams,  42  Ch.  D.  93. 

"The  wills  act  changed  this  with  regard  to  general  iX)wers,  but,  in  con- 
sequence of  the  construction  given  to  the  act  by  the  courts,  left  special 
powers  unaffected.  Turnbull  v.  Hayes,  [1900]  2  Ch.  332;  s.  c.  on  appeal, 
[1901]  2  Ch.  529;    Foulkes  v.  Williams,  ubi  supra: 

"In  regard  to  general  powers  the  rule  now  is  that  a  general  devise  of 
property  real  or  personal  is  presumed  to  include  a  general  power  of  appoint- 
ment unless  the  contrary  appears  from  the  will.  Jarm.  Wills  (0th  Ed.)  6.34, 
635.  In  regard  to  special  powers  the  riile  remains  the  same  as  laid  down 
before  the  passage  of  the  wills  act  respecting  powers  generally.  If  it  were 
necessary  to  determine  the  question  we  should  hesitate  to  follow  the  rule 
laid  down  by  the  English  cases  in  regard  to  special  powers  of  appointment 
There  is  certainly  less  reason  for  doing  so  since  Amory  v.   Meredith  than 


400  POWERS  (Part  3 

before.  There  would  seem  to  be  no  good  reason  why  tlie  Question  whether 
a  special  power  of  appointment  had  been  exercised  should  not  be  determmed 
by  The  same  rules  tliat  are  ^'Ptl^d^in  or ner  cases  to  tne  construction  or 
irifefT5TCtatiOTrj)r_wiils.  oT~wfiy  the  distinction  between  a  power  and  prop- 
erTy,  wlntli"lias  resulted  in  many  instances,  as  courts  have  been  compelled 
to  admit,  in  defeating  the  intention  of  the  testator  should  \^e  adhered  to  in 
cases  where  as  in  the  present  the  donee  of  the  power  has  the  use  of  the 
property  for  his  life  and  may,  not  unnaturally  or  unreasonably,  have  failed 
to  distinguish  between  propei'ty  strictly  and  technically  belonging  to  him  and 
that  of  which  he  has  the  use.  But  we  do  not  think  that  it  is  necessary  to 
detennine  whether  the  rule  laid  down  by  the  English  cases  in  regard  to 
special  powers  should  or  should  not  be  followed  in  this  Commonwealth. 
For  we  think  that  it  clearly  appears  that  J.  Malcolm  Forbes  intended  to 
exercise  the  power  and  that  he  has  done  so." 

Note. — On  the  mode  of  executing  a  power  of  sale  on  a  mortgage  deed,  see 
HaU  V.  Bliss,  118  Mass.  551,  19  Am.  Rep.  476  (1875). 


Ch.  8)       POWERS   IN    LIFE   TENANTS   TO   DISPOSE    OF   THE    FEE  401 

CHAPTER  VIII 
POWERS  IN  LIFE  TENANTS  TO   DISPOSE  OF  THE  FEE 


BRANT  V.  VIRGINIA  COAL  &  IRON  CO. 
(Supreme  Court  of  United  States,  1876.    93  U.  S.  326,  23  L.  Ed.  927.) 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the  District 
of  West  Virginia. 

In  April,  1831,  Robert  Sinclair,  of  Hampshire  County,  Va.,  died, 
leavino-  a  widow  and  eight  surviving  children.  He  was,  at  the  time  of 
his  death,  possessed  of  some  personal  property,  and  the  real  property 
in  controversy,  consisting  of  one  hundred  and  ten  acres.  By  his  last 
will  and  testament  he  made  the  following  devise :  "I  give  and  be- 
queath to  my  beloved  wife,  Nancy  Sinclair,  all  my  estate,  both  real 
and  personal ;  that  is  to  say,  all  my  lands,  cattle,  horses,  sheep,  farm- 
ing utensils,  household  and  kitchen  furniture,  with  every  thing  that  I 
possess,  to  have  and  to  hold  during  her  life,  and  to  do  with  as  she 
sees  proper  before  her  death."  The  will  was  duly  probated  in  the 
proper  county. 

In  July,  1839,  the  widow,  for  the  consideration  of  $1,100,  executed 
a  deed  to  the  Union  Potomac  Company,  a  corporation  created  under 
the  laws  of  Virginia,  of  the  real  property  thus  devised  to  her,  describ- 
ing it  as  the  tract  or  parcel  on  which  she  then  resided,  and  the  same 
which  was  conveyed  to  her  "by  the  last  will  and  testament  of  her  late 
husband."  As  security  for  the  payment  of  the  consideration,  she  took 
at  the  time  from  the  company  its  bond  and  a  mortgage  upon  the 
property.  The  mortgage  described  the  property  as  the  tract  of  land 
which  had  on  that  day  been  conveyed  by  her  to  the  Union  Potomac 
Company. 

In  1854  this  bond  and  mortgage  were  assigned  to  the  complainant 
and  Hector  Sinclair,  the  latter  a  son  of  the  widow,  in  consideration 
of  $100  cash,  and  the  yearly  payment  of.  the  like  sum  during  her  life. 
Previous  to  this  time.  Brant  and  Hector  Sinclair  had  purchased  the 
interest  of  all  the  other  heirs,  except  Jane  Sinclair,  who  was  at  the 
time,  and  still  is,  an  idiot,  or  an  insane  person ;  and  such  purchase  is 
recited  in  the  assignment,  as  is  also  the  previous  conveyance  of  a  life- 
interest  to  the  company. 

In  July,  1857,  these  parties  instituted  suit  for  the  foreclosure  of  the 
mortgage  and  sale  of  the  property.  The  bill  described  the  property 
4  Kales  Peop. — 26 


102  POWERS  (Part  3 

as  a  tract  of  valuable  coal  land  which  the  company  had  purchased  of 
the  widow,  and  prayed  for  the  sale  of  the  estate  purchased.  Copies 
of  the  deed  of  the  wadow  and  of  the  mortgage  of  the  company  were 
annexed  to  the  bill.  In  due  course  of  proceedings  a  decree  was  ob- 
tained directing  a  sale,  by  commissioners  appointed  for  that  purpose, 
of  the  property,  describing  it  as  "the  lands  in  the  bill  and  proceedings 
mentioned,"  if  certain  payments  were  not  made  within  a  designated 
period.  The  payments  not  being  made,  the  commissioners,  in  De- 
cember, 1858,  sold  the  mortgaged  property  to  one  Patrick  Hammill, 
who  thus  succeeded  to  all  the  rights  of  the  Union  Potomac  Company. 

The  defendant  corporation,  the  Virginia  Coal  and  Iron  Company, 
derive  their  title  and  interest  in  the  premises  by  sundry  mesne  con- 
veyances from  Hammill,  and  in  1867  went  into  their  possession.  Since 
then  it  has  cut  down  a  large  amount  of  valuable  timber,  and  has  en- 
gaged in  mining  and  extracting  coal  from  the  land,  and  disposing 
of  it. 

Brant,  having  acquired  the  interest  of  Hector  Sinclair,  brought  the 
present  suit  to  restrain  the  company  from  mining  and  extracting  coal 
from  the  land,  and  to  compel  an  accounting  for  the  timber  cut  and 
the  coal  taken  and  converted  to  its  use. 

The  court  below^  dismissed  the  bill,  whereupon  Brant  brought  the 
case  here. 

Fie;ld,  J.  The  disposition  of  the  case  depends  upon  the  construction 
given  to  the  devise  of  Robert  Sinclair  to  his  widow,  and  the  opera- 
tion of  the  foreclosure  proceedings  as  an  estoppel  upon  the  complain- 
ant from  asserting  title  to  the  property. 

The  complainant  contends  that  the  widow  took  a  life-estate  in  the 
property,  wath  only  such  power  as  a  life-tenant  can  have,  and  that 
her  conveyance,  therefore,  carried  no  greater  interest  to  the  Union 
Potomac  Company.  The  defendant  corporation,  on  the  other  hand, 
insists  that,  with  the  life-estate,  the  widow  took  full  power  to  dispose 
of  the  property  absolutely,  and  that  her  conveyance  accordingly  pass- 
ed the  fee. 

We  are  of  opinion  that  the  position  taken  by  the  complainant  is  the 
correct  one.  The  interest  conveyed  by  the  devise  to  the  widow  was 
only  a  life-estate.  The  language  used  admits  of  no  other  conclusion ; 
and  the  accompanying  words,  "to  do  with  as  she  sees  proper  before 
her  death,"  only  conferred  power  to  deal  with  the  property  in  such 
manner  as  she  might  choose,  consistently  with  that  estate,  and,  per- 
haps, without  liability  for  waste  committed.  These  words,  used  in 
connection  with  a  conveyance  of  a  leasehold  estate,  would  never  be 
understood  as  conferring  a  power  to  sell  the  property  so  as  to  pass  a 
greater  estate.  Whatever  power  of  disposal  the  words  confer  is  lim- 
ited by  the  estate  with  which  they  are  connected. 

In  the  case  of  Bradley  v.  Westcott,  reported  in  the  13th  of  Vesey, 


Ch.  8)        POWERS    IN    LIFE    TENANTS   TO    DISPOSE    OF   THE   FEE  403 

the  testator  gave  all  his  personal  estate  to  his  wife  for  her  sole  use 
for  life,  to  be  at  her  full,  free,  and  absolute  disposal  and  disposition 
during  life ;  and  the  court  held,  that,  as  the  testator  had  given  in 
express  terms  an  interest  for  life,  the  ambiguous  words  afterwards 
thrown  in  could  not  extend  that  interest  to  the  absolute  property.  "I 
must  construe,"  said  the  ^Master  of  the  Rolls,  "the  subsequent  words 
with  reference  to  the  express  interest  for  life  previously  given,  that 
she  is  to  have  as  full,  free,  and  absolute  disposition  as  a  tenant  for  life 
can  have." 

In  Smith  v.  Bell,  reported  in  6  Pet.  68,  8  L.  Ed.  322,  the  testator 
gave  all  his  personal  estate,  after  certain  payments,  to  his  wife,  "to 
and  for  her  own  use  and  disposal  absolutely,"  with  a  provision  that 
the  remainder  after  her  decease  should  go  to  his  son.  The  court  held 
that  the  latter  clause  qualified  the  former,  and  showed  that  the  wife 
only  took  a  life-estate.  In  construing  the  language  of  the  devise. 
Chief  Justice  Marshall,  after  observing  that  the  operation  of  the  words 
"to  and  for  her  own  use  and  benefit  and  disposal  absolutely,"  annexed 
to  the  bequest,  standing  alone,  could  not  be  questioned,  said,  "But 
suppose  the  testator  had  added  the  words  'during  her  natural  life,' 
these  words  would  have  restrained  those  which  preceded  them,  and 
have  limited  the  use  and  benefit,  and  the  absolute  disposal  given  by 
the  prior  words,  to  the  use  and  benefit  and  to  a  disposal  for  the  life 
of  the  wife.  The  words,  then,  are  susceptible  of  such  limitation.  It 
may  be  imposed  on  them  by  other  words.  Even  the  words  'disposal 
absolutely'  may  have  their  character  qualified  by  restraining  words 
connected  with  and  explaining  them,  to  mean  such  absolute  disposal 
as  a  tenant  for  life  may  make." 

The  Chief  Justice  then  proceeded  to  show  that  other  equivalent 
words  might  be  used,  equally  manifesting  the  intent  of  the  testator  to 
restrain  the  estate  of  the  wife  to  her  life,  and  that  the  words,  "devis- 
ing a  remainder  to  the  son,"  were  thus  equivalent. 

In  Boyd  v.  Strahan,  36  111.  355,  there  was  a  bequest  to  the  wife  of 
all  the  personal  property  of  the  testator  not  otherwise  disposed  of, 
"to  be  at  her  own  disposal,  and  for  her  own  proper  use  and  benefit 
during  her  natural  life ;"  and  the  court  held  that  the  words  "during 
her  natural  life"  so  qualified  the  power  of  disposal,  as  to  make  it 
mean  such  disposal  as  a  tenant  for  life  could  make. 

Numerous  other  cases  to  the  same  purport  might  be  cited.  They 
all  show,  that  where  a  power  of  disposal  accompanies  a  bequest  or 
devise  of  a  life-estate,  the  power  is  limited  to  such  disposition  as  a 
tenant  for  life  can  make,  unless  there  are  other  words  clearly  indicat- 
ing that  a  larger  power  was  intended. 

The  position  that  the  complainant  is  estopped,  by  the  proceedings 
for  the  foreclosure  of  the  mortgage,  from  asserting  title  to  the  prop- 
erty, has  less  plausibility  than  the  one  already  considered.  [The  bal- 
ance of  the  opinion  on  this  point  is  omitted.] 


404  POWERS  (Part  3 

The  decree  of  the  Circuit  Court  must  be  reversed  and  the  case  re- 
manded for  further  proceedings  in  accordance  with  this  opinion;  and 
it  is  so  ordered. 

SwAYNi:  and  Davis,  JJ.,  dissented. 


WOODBRTDGE  v.  JONES. 
(Supreme  Juflicial  Court  of  Massachusetts,  1903.    183  Mass.  549,  67  N.  E.  S7S.) 

Petition,  filed  February  25,  1901,  for  registration  of  title  under  the 
land  registration  act,  St.  1898,  c.  562,  R.  L.  c.  128,  to  a  parcel  of  land 
on  the  corner  of  Denver  and  Central  Streets  in  the  town  of  Saugus, 
known  as  the  Salmon  Snow  place  and  being  a  portion  of  the  real  es- 
tate formerly  owned  by  William  H.  Twiss,  late  of  Saugus,  deceased. 
The  respondents  in  their  answer  denied  that  the  petitioners  were  seis- 
ed in  fee  simple  of  the  premises  described  in  the  petition,  for  the  rea- 
son that  as  a  matter  of  law  the  second  clause  of  the  will  of  William 
H.  Twiss  did  not  empower  vSarepta  Twiss,  grantor  of  the  petitioners, 
to  give  a  good  and  valid  deed  of  the  premises. 

The  case  was  tried  before  Davis,  J.  The  second  clause  of  the  will 
of  William  H.  Twiss  is  quoted  by  the  court. 

The  property  in  question,  together  with  other  land,  had  been  con- 
veyed to  the  testator  in  January,  1881,  by  Nancy  Snow,  the  mother 
of  the  testator's  first  wife,  and  the  great  grandmother  of  the  defend- 
ant Dora  S.  Jones.  The  testator  and  his  second  wife,  Sarepta  Twiss, 
were  married  in  1858.  In  1878  Nancy  Snow,  then  a  widow,  who  had 
for  some  years  lived  alone  and  had  received  much  care  from  the  tes- 
tator and  Sarepta,  having  become  old  and  feeble  was  brought  by  the 
testator  to  his  own  home  and  there  cared  for  by  the  testator  and 
Sarepta  until  1887,  when  she  died  at  the  age  of  eighty-seven  years, 
devising  all  her  property,  to  the  appraised  value  of  $1,526,  to  William 
H.  Twiss,  with  the  exception  of  a  legacy  of  $50  to  her  grandson,  the 
father  of  Dora  S.  Jones. 

The  probate  inventory  of  the  estate  of  William  II.  Twiss  showed 
real  estate  to  an  appraised  value  of  $5,985,  and  personal  estate  to  an 
appraised  value  of  $12,793,  the  premises  in  question  being  appraised 
at  $1,900. 

On  January  30,  1901,  the  premises  were  conveyed  to  the  petitioners 
by  Sarepta  Twiss  by  a  full  warranty  deed  in  common  form. 

On  the  foregoing  facts  the  judge  ruled  as  matter  of  law,  first,  that 
under  the  second  clause  of  the  will  of  William  H.  Twiss,  his  widow, 
Sarepta  Twiss,  took  a  life  estate  in  the  premises  in  suit,  with  a  power 
of  disposing  of  the  same  in  fee  simple;  and  second,  that  the  deed 
from  her  to  the  petitioners  of  January  30,  1901,  was  a  valid  exercise 
of  such  power;  and  filed  a  decision  ordering  a  decree  for  the  petition- 


Ch.  8)       POWERS   IN   LIFE   TENANTS   TO    DISPOSE    OF   THE   FEE  405 

ers.  At  the  request  of  the  respondents,  he  reported  the  case  upon  the 
foregoing  facts,  ruHngs,  and  decision,  for  determination  by  this  court. 

If  the  ruHngs  were  right,  a  final  decree  was  to  be  entered  for  the 
petitioners  as  ordered.  If  the  ruhngs  were  wrong,  a  final  decree  was 
to  be  entered  dismissing  the  petition. 

Hammond,  J.  Before  proceeding  to  the  consideration  of  this  case, 
we  desire  to  comment  upon  the  form  of  the  report.  The  report  calls 
for  the  interpretation  of  a  clause  in  a  will.  In  such  a  case,  for  rea- 
sons too  obvious  to  be  stated,  not  only  the  clause  itself,  but  the  whole 
will,  should  be  placed  before  us;  and,  where  that  is  not  done,  we 
cannot  be  entirely  free  from  apprehension  that  something  which,  if 
placed  before  us,  would  have  thrown  light  upon  the  question  involved, 
may  have  been  omitted,  and,  in  a  close  case,  that  the  thing  omitted 
might  have  led  us  to  a  different  conclusion.  In  the  report  before  us, 
no  part  of  the  will  is  contained  in  the  report,  except  the  clause  upon 
which  the  question  before  us  has  arisen,  and  we  therefore  enter  upon 
the  consideration  of  it  with  reluctance. 

The  clause  is  as  follows  :  "I  devise  and  bequeath  all  the  rest  and 
residue  of  my  estate,  both  real  and  personal,  to  my  wife,  Sarepta 
Twiss,  during  her  life,  to  use  and  dispose  of  the  same  as  she  may 
think  proper,  with  remainder  thereof  on  her  decease,  one-third  to  the 
heirs  of  my  brother  Isaac  Twiss,  one-third  to  the  heirs  of  my  brother 
John  G.  Twiss,  and  the  balance  to  Dora  S.  Jones  above  mentioned." 
And  the  question  is  whether  the  life  tenant  had  the  power  to  dispose 
of  any  portion  of  the  real  estate  in  fee.  It  is  a  narrow  and  difficult 
question.  If  the  writer  of  this  will  had  studied  the  decisions  made  in 
this  state  and  elsewhere,  with  a  view  to  frame  a  clause  which  in  that 
respect  should  be  as  ambiguous  and  obscure  as  possible,  it  is  doubtful 
if  he  could  have  selected  language  more  appropriate  for  his  purpose 
than  that  which  he  actually  used.  As  to  a  student  in  geometry  it 
sometimes  happens  that  a  solid  angle  in  a  particular  figure  before 
him  will  seem  at  one  moment  to  point  up,  and  at  another  moment 
down,  so  the  interpretation  of  this  clause  seems  to  change  according 
as  emphasis  is  placed  on  the  word  "dispose,"  on  the  one  hand,  or  on 
the  technical  meaning  of  the  word  "remainder,"  on  the  other.  On  the 
one  hand,  it  is  urged  that  by  the  express  language  of  the  will  there  is 
devised  to  the  wife  a  life  estate  only,  with  the  remainder  to  the  other 
devisees  named  in  the  clause ;  that  the  word  "remainder"  is  used  in  its 
proper  technical  sense,  namely,  as  describing  an  estate  limited  to  take 
effect  and  to  be  enjoyed  after  the  determination  of  another  estate 
which  is  created  with  it,  and  that  in  this  case  the  previous  estate  is  a 
life  estate;  that,  if  the  testator  had  meant  by  the  word  to  indicate 
only  such  property  as  remained  undisposed  of  at  the  decease  of  the 
life  tenant,  he  would  have  avoided  this  technical  word,  and  would 
have  used  some  such  phrase  as  "whatever  remains";  that,  as  against 
the  technical  meaning  of  the  word  "remainder,"  the  testator,  by  the 


406  POWERS  (Part  3 

phrase  "to  use  and  dispose  of  the  same  as  she  may  think  proper," 
meant  simply  to  emphasize  in  express  languag-e  the  powers  over  the 
property  which  are  conferred  by  law  upon  the  life  tenant  as  such,  just 
as  sometimes  similar  language  following  a  devise  in  fee  has  been  held 
to  describe  expressly  only  what  the  law  would  have  implied,  and 
therefore  to  be  of  no  real  legal  effect.  See  Veeder  v.  Header,  157 
Mass.  413,  32  N.  E.  358. 

On  the  other  hand,  it  is  urged  that  the  word  "dispose"  is  broad 
enough  to  include  a  conveyance  in  fee,  and  that  to  Umit  its  operation 
to  only  such  power  as  the  law  gives  to  a  life  tenant  strictly  as  such  is 
to  give  to  it  no  meaning  at  all ;  that  the  word  "same"  clearly  refers 
to  the  property  itself,  and  not  merely  to  the  estate  in  it  (see  the  lan- 
guage of  Chapman,  C.  J.,  in  Cummings  v.  Shaw,  108  Mass.  159,  in 
which  case,  however,  there  was  no  devise  over),  and  that  the  word 
"remainder"  is  not  used  in  its  technical  sense,  but  simply  means  what- 
ever property  shall  remain  undisposed  of  at  the  time  of  the  decease  of 
the  life  tenant  (see  Ford  v.  Ticknor,  169  Mass.  276,  47  N.  E.  877). 
While  we  are  not  aware  of  any  case  where  the  language  of  the  will  is 
precisely  like  this,  still  authorities  may  be  found  which  in  their  gener- 
al effect  would  fairly  seem  to  sustain  either  of  these  views ;  and,  as  we 
have  said,  the  question,  though  narrow,  is  dilBcult.  The  facts  re- 
specting the  circumstances  of  the  testator  and  his  relation  to  the  ob- 
jects of  his  bounty,  as  set  forth  in  the  report,  bear  some  in  favor  of 
one  interpretation,  and  some  in  favor  of  the  other.  The  testator  had 
no  children,  and  the  life  tenant  was  his  second  wife.  His  property 
was  not  large,  and  he  may  have  felt  that  the  income  would  be  insuf- 
ficient for  her  support.  On  the  whole,  we  are  inclined  to  the  view 
that  the  word  "same"  refers  to  the  property,  and  not  to  the  life  es- 
tate ;  that  the  word  "dispose"  includes  a  conveyance  absolute  and  in 
fee  simple,  and  that  therefore  the  life  tenant  had  the  power  during 
her  life  to  make  such  a  conveyance  of  a  part  or  the  whole  of  the 
property;  and  that  the  word  "remainder,"  while  used  in  a  technical 
sense,  must  still  be  held  as  subordinate  to  the  power  given  as  above 
stated  to  the  Hfe  tenant,  and  liable  to  be  defeated  as  to  any  part  of 
the  estate  over  which  the  power  was  exercised.  This  construction 
gives  effect  to  the  clause  conferring  the  right  to  dispose,  and  is  not  in- 
consistent wath  the  technical  meaning  of  the  word  "remainder,"  but 
simply  makes  the  estate  described  by  it,  while  vesting  upon  the  de- 
cease of  the  testator,  yet  defeasible  by  the  exercise  of  the  power  con- 
ferred upon  the  life  tenant.  In  a  word,  it  gives  effect  to  every  clause, 
and  is  not  inconsistent  with  what  might  reasonably  be  supposed  to  be 
the  intention  of  the  testator. 

For  cases  where  language  somewhat  similar  to  that  used  in  this  will 
has  been  construed  in  this  state,  see  Cummings  v.  Shaw,  ubi  supra; 
Ford  v.  Ticknor,  ubi  supra;  Knight  v.  Knight,  162  Mass.  460,  38  N. 
E.  1131,  and  cases  cited;  Collins  v.  Wickwire.  162  Mass.  143.  38  N.  F. 


Ch.  8)        POWERS   IN    LIFE    TENANTS   TO    DISPOSE    OF   THE   FEE  407 

365 ;  Sawin  v.  Cormier,  179  Mass.  420,  60  X.  E.  936;  Roberts  v.  Lew- 
is, 153  U.  S.  367,  14  Sup.  Ct.  945,  38  L.  Ed.  747;  Lewis  v.  Shattuck, 
173  Mass.  486,  53  N.  E.  912;  Burbank  v.  Sweeney,  161  Mass.  490,  Z7 
.N.  E.  669.  And  for  cases  decided  elsewhere,  and  which  seem  some- 
what in  conflict  with  each  other,  see  Giles  v.  Little,  104  U.  S.  291,  26 
L.  Ed.  745;  Little  v.  Giles,  25  Xeb.  313,  41  X.  W.  186;  Brant  v.  Vir- 
ginia Coal  &  Iron  Co.,  93  U.  S.  326,  23  L.  Ed.  927;  Pattv  v.  Goolsbv, 
51  Ark.  61,  9  S.  W.  846;  Whittemore  v.  Russell,  80  ^le'  297,  14  At'l. 
197,  6  Am.  St.  Rep.  200. 

Decree  for  the  petitioners  as  ordered.^ 

1  Lewis  V.  Palmer,  46  Conn.  454 ;  Glover  v.  Stillson,  56  Conn.  316,  15 
Atl.  752 ;  Security  Co.  v.  Pratt,  65  Conn.  101.  180,  32  Atl.  31)0 ;  Giles  v.  Little 
(C.  C.)  13  Fed.  100 :    Moyston  v.  Bacon,  75  Tenn.  (7  Lea)  230. 

See,  also.  In  re  Cashman'.s  Estate,  134  111.  88,  24  N.  Y..  963  (1890) ;  Yanatta 
V.  Carr.  223  111.  160.  79  N.  E.  SO  (1906)  ;  Clark  v.  Middlesworth,  82  Ind.  240; 
Ramsdell  v.  Ramsdell,  21  Me.  288. 


PART  IV 

RULE  AGAINST  PERPETUITIES 


CHAPTER  I 
THE  RULE  AND  ITS  COROLLARIES 


CHILD  V.  BAYLIE. 
(King's  Bench  and  Exchequer  Chamber,  161S.     Cro.  Jac.  459.) 

See  ante,  p.  150,  for  a  report  of  the  case. 


DUKE  OF  NORFOLK'S  CASE. 

(Court  of  Chancery,  16S2.     3  Ch.  Cas.  1.) 
See  ante,  p.  153,  for  a  report  of  the  case. 


LLOYD  V.  CAREW. 

(House  of  Lords,  1697.     Show.  Pari.  Cas.  137.) 

Appeal  from  a  decree  of  dismission  in  chancery.  The  case  was  thus : 
Rice  Tannott  died  seised  in  fee  of  several  lands  in  the  several  counties 
of  Salop,  Denbigh  and  Montgomery,  leaving  three  daughters  and  co- 
heirs, Mary,  Penelope,  and  Susan.  Susan  married  Sidney  Godolphin, 
one  of  the  present  appellants.  In  July,  1674,  Mary  and  Penelope,  in 
consideration  of  £4000  paid  to  the  said  Mary  by  Richard  Carew,  Esq. ; 
and  in  consideration  of  a  marriage  to  be  had,  and  which  was  afterwards 
had,  between  Penelope  and  the  said  Richard  Carew,  by  lease  and  re- 
lease, convey  all  those  their  two  parts  of  the  said  lands  in  Denbigh,  Sa- 
lop, and  Montgomery,  to  trustees  and  their  heirs,  to  the  use  of  Richard 
Carew  for  life,  then  to  Penelope  for  life  for  her  jointure,  then  to  the 
said  trustees  and  their  heirs,  during  the  lives  of  Richard  and  Penelope, 
to  preserve  contingent  remainders ;  then  to  the  first  and  other  sons  of 
4  Kales  Prop.  (408) 


Ch.  1)  THE   RULE   AND   ITS   COROLLARIES  409 

Richard  and  Penelope  in  tail  male  successively  :  and  in  default  of  issue 
male,  to  the  daughters  of  Richard  and  Penelope  in  tail :  and  in  de- 
fault of  such  issue,  as  to  one  moiety  of  the  said  two  parts,  to  the  first 
and  other  sons  of  the  said  Penelope  by  any  other  husband  in  tail,  the 
remainder  of  all  and  singular  the  premises  to  the  said  Richard  Carew 
ancHiis  heirTTor^vef^  subject  to  this  proviso,  "that  ij  it  should  happen 
that  no  issue  ot  tlTe^aid  Richard,  upon  the  body  of  the  said  Penelope, 
should  be  living  at  the  decease  of  the  survivor  of  them,  and  the  heirs 
of  the  said  Penelope  should  within  twelvejnonths^fter  the  decease^f_ 
the  survivor  of  the  said  Richard  and  Penelope  dying  without  issue  as 
a foresaT^ppay  Lu  IJTgjgirs;W~^5gigirg::gfThe'said  Richard  Carev\^~~nTg~ 
sum~ot  £40UU.  that  then  the  remainder  in  fee-simple  so  limited,  to  the 
said-^jchard  Carew  and  hi?^eirl'should_cea?eT~and~tKaFllien,  and 
from  tlifenceiorth,  the  premises  should  remain  to  the  use  of  the  right 
heirs  of  the  said   Penelope  forever." 

After  this  Mary  intermarried  with  the  appellant  Sir  Evan  Lloyd,  and 
a  partition  was  made  of  the  premises,  and  the  same  had  been  enjoyed 
accordingly  ever  since,  and  IVIr.  Carew  and  his  lady  levied  a  fine  to  Mr. 
Godolphin  and  his  lady  of  his  part ;  who  did  thereupon  by  their  deed 
dated  23  Sept.  1676,  covenant  to  levy  a  fine  of  ]\Ir.  Carew's  two  parts, 
to  such  uses  as  he  and  his  lady  should  limit  and  appoint,  but  have  not 
yet  levied  the  said  fine. 

Richard  Carew  and  Penelope  his  wife,  to  avoid  all  controversies  that 
might  happen,  whereby  the  estate  of  the  said  Richard  Carew,  or  his 
heirs,  might  be  questioned  or  encumbered  by  the  heirs  of  Penelope ; 
and  to  the  end  to  extinguish  and  destroy  and  bar  all  such  estate,  right, 
title,  equitable  or  other  interest,  as  the  said  Penelope  then  had,  or  her 
issue  and  heirs  might  have  or  claim  to  the  same,  by  any  pow'er,  settle- 
ment, or  condition,  on  payment  of  £4000  or  otherwise,  to  the  heirs  of 
Richard  Carew,  by  the  heirs  of  the  said  Penelope;  and  for  the  settling 
of  the  same  on  the  said  Richard  Carew  and  his  heirs,  did  in  ISIichaelmas 
Term,  1681,  levy  a  fine  of  the  share  and  part  allotted  to  them,  and  by 
deed  of  10  Dec.  1681,  declare  that  the  said  fine  should  be  to  the  use 
of  the  said  Richard  for  life,  remainder  to  Penelope  for  life,  the  remain- 
der to  the  said  Richard  Carew,  his  heirs  and  assigns  forever:  and  do 
further  declare,  that  the  fine  agreed  to  be  levied  by  the  appellants  Sid- 
ney Godolphin  and  Susan  his  wife,  by  their  deed  dated  the  23  Sept. 
1676,  should  be  to  the  same  uses,  and  then  direct  the  trustees  by  the 
first  settlement  to  convey  to  those  uses. 

Penelope  died  without  issue  in  1690.  Richard  Carew  made  his  will- 
in  August,  1691,  and  devised  the  said  lands  to  Sir  John  Carew,  Baro- 
net, his  brother,  subject  to  pay  all  his  debts  and  legacies,  and  made  Sir 
John  Carew  his  executor. 

In  December,  1691,  Richard  Carew  died  without  issue,  and  Sir  John 
Carew  entered,  and  was  seised  and  possessed  of  the  premises,  and  paid 
£4855  for  tlie  debts  of  Richard  Carew. 


410  RULE   AGAINST  PERPETUITIES  (Part  4 

Sir  John  Carew  died,  and  the  respondent,  Sir  Richard  Carew,  an  in- 
fant, is  his  son,  heir,  and  executor. 

The  appellants,  INIary  and  Susan  claimrngjlTeJands  as  heirs  to  Pen- 
elope, by  virtue  ot_the  said  proviso  in  the  first  settlement,  upon  payment 
of'tUe  i4u0u  exhibited  thei?  bill  in~Chan^eixtg_compeI~tTie  trustees  to 
com^ey  the  estate  to  them  upon  such  payment.  '       ^ 

L'pon  hearing  of  this  cause^onTbill  and  answer,  the  court  ordered 
a  state  of  the  case  to  be  drawn,  which  was  as  above ;  and  afterwards 
the  court  [Sir  John  Somers,  C],  assisted  by  the  Chief  Justice  of 
the  Common  Pleas  [Sir  Guorgb  TrEby]  and  Mr.  Justice  Rooksby, 
seeing  no  cause  to  relieve  the  plaintiffs,  dismissed  their  bill. 

And  now  it  was  argued  on  behalf  of  the  appellants,  that  such  dismis- 
sion ought  to  be  set  aside;  and  amongst  other  things,  it  was  insisted 
on  in  favor  of  the  appeal,  that  this  proviso  was  not  void ;  that  it  was 
within  the  reason  of  the  contingent  limitations  allowed  by  the  late  Lord 
Chancellor  Nottingham  in  the  case  of  the  Duke  of  Norfolk,  and  there 
were  quoted  several  paragraphs  in  the  argument  made  by  the  said  Lord 
Chancellor,  as  that  future  interests,  springing  trusts,  or  trusts  execu- 
tory, remainders  that  are  to  emerge  or  arise  upon  contingency,  are  cjuite 
out  of  the  rules  and  reasons  of  perpetuities;  nay,  out  of  the  reason, 
upon  which  the  policy  of  the  law  is  founded  in  those  cases,  especially 
if  they  be  not  of  remote  or  long  consideration,  but  such  as  by  a  nat- 
ural and  easy  interpretation  will  speedily  wear  out,  and  so  things  come 
to  the  right  channel  again:  that  though  there  can  be  no  remainders 
limited  after  afee-simple,  yet  there  jiiay^  be  a  contmgenPTee^siniple 
arise  out~of  the  first  fee ;  thatthe  ultimum  quod  sit^onihe  utmost  lim- 
itation  of  a  fee~upon  a  tee^is  not  yet  plainly^  detemiined:  thaTlKough 
it  be  impossible  to  limit  a  remainder  of  a  fee  upon  a  fee,  yet  't  is  not 
impossible  to  limit  a  contingent  fee  upon  a  fee ;  that  no  conveyance  is 
ever  to  be  set  aside  in  Chancery,  where  it  can  be  supported  by  a  rea- 
sonable construction,  especially  where  't  is  a  family  settlement.  Then 
these  paragraphs  were  applied ;  and  further  urged,  that  there  could  not 
in  reason  be  any  dj^fference  between  a  contingency  to  happeiTHurmgli  f e 
or  lives,  or  within  one  year  afterwards ;  that  the  true  reason  of  such 
opinions  which  allowed~them,  if  happening  within  the  time  of  the  par- 
ties' lives,  or  upon  their  deceases,  was  because  no  inconvenience  could 
be  apprehended  thereby  ;  and  the  same  reason  will  hold  to  one  year  aft- 
erwards ;  and  the  true  rule  is  to  fix  limits  and  boundaries  to  such  limi- 
tations, when  so  made,  as  that  they  prove  inconvenient,  and  not  oth- 
erwise :  that  this  limitation  upon  this  contingency  happening,  was  the 
considerate  intention  of  the  family,  the  circumstances  whereof  required 
consideration,  and  this  settlement  was  the  result  of  it,  and  made  by 
good  advice :  that  the  fine  could  not  bar  the  benefit  of  this  proviso ; 
for  that  the  same  never  was,  nor  ever  could  be  in  Penelope,  who  levied 
the  fine. 


Ch.  1)  THE    RULE   AND   ITS   COROLLARIES  411 

As  to  the  pretence,  that  if  the  appellants  were  relieved,  Richard 
Carevv  who  married  Penelope,  would  have  no  portion  with  her.  'T  was 
answered,  that  that  could  not  alter  the  case ;  the  agreement  and  inten- 
tion of  the  parties  being  the  most  considerable  matter;  and  besides, 
Richard  enjoyed  the  estate  during  his  life  without  impeachment  of 
waste.  And  as  to  the  debts,  't  was  answered,  that  those  were  no  ingre- 
dients in  the  question ;  however  there  would  be  £4000  paid  towards  it, 
and  the  personal  estate  was  more  than  enough  to  pay  the  residue.  For 
which,  and  other  reasons,  't  was  prayed  that  the  dismission  might  be 
reversed. 

On  the  other  side  it  was  insisted  on  with  the  decree,  1,  that  the  lim- 
itation  byTheTettlement  in  July,  1674,  to  the  heirs  of  Penelope,  upon 
payment  of  i4000  by  them  to  the  heirs  of  Richard  Carew,  within  twelve 
months  after  the  death  of  Richard  and  Penelope,  without  issue,  at  the 
time  of  the  decease  of  the  survivor  of  them,  is  a  voidjimitation,  the 
fee-sjmple  being  beforejigiited  to  Richard  and  his  heirs,  and_so  not 
capable  of  a  further  limitation,  unless  upon  a  contingency  to  happen  in 
the  liTe  of  mie  or  more~persons  m  bemg7at  the  time  ot  the  settlement; 
which  is  the  furthest  that  the  judges  have  ever  yet  gone,  in  allowing 
these  contingent  limitations  upon  a  fee;  and  which  were  the  bounds 
set  to  these  limitations  by  the  late  Lord  Chancellor  Nottingham,  in  the 
case  of  the  Duke  of  Norfolk;  that  though  there  were  such  expressions 
as  had  been  read  on  the  other  side,  yet  the  bounds  set  by  him  to  these 
limitations,  were  only  dependent  upon  life  or  lives  in  being,  and  never 
as  yet  went  any  further :  and  if  they  should  be  extended,  and  allowed 
to  be  good  upon  contingencies  to  happen  within  Tvvelve  months  after 
the  deaIh~of  one  or  more  personsTThey'may  be  as  welfliTfowedr^pon' 
contingencies  to  "happerT  \vithiir"a"fhousaLnd  years;  J^yJ^^d^ich__alL_the 
mi^rblefs^hat  are  the  necessary  consequents^f^  perpetuities^  which 


1iavp2^ppri_';n  iT-|r]n9triruj>ay^-aA-oid£dJn  all  ages,  will  be  let  in:  and  the 
owner  of  a  fee-simple  thus  clogged,  would  be  no  more  capable  of  pro- 
viding for  the  necessities  and  accidents  of  his  family,  than  a  bare  ten- 
ant for  life. 

2.  If  this  limitation  were  good,  't  wa£_urged,  that  the  estate  limited 
to  the  heirs  of  Penelope  was  virtually  in  her,  and  her  heirs  must  claim 
by  descent  from  her,  and  not  as  purchasers ;  and  by  consequence  this 
estate  is  effectually  barred  by  the  fine  of  Penelope :  the  design  of  lim- 
iting this  power  to  the  heirs,  not  being  to  exclude  the  ancestor ;  but 
because  the  power  could  not  in  its  nature  be  executed  until  after  the 
decease  of  the  ancestor,  it  being  to  take  effect  upon  a  contingency,  that 
could  not  happen  till  after  that  time ;  and  this  bill  and  appeal  was  not 
only  to  have  the  said  Richard  Carew,  who  married  Penelope,  to  have 
not  one  farthing  portion  with  his  wife,  but  to  make  the  now  respondent 
Sir  Richard  Carew,  to  lose  the  £4855  which  his  father  Sir  John  Carew 
paid,  as  charged  on  the  lands  in  question.     For  which  reasons,  and 


412 


RLXE  AGAINST   PERPETUITIES 


(Part  4 


many  others  well  urged  about  the  mischief  and  danger  of  perpetuities, 
and  their  increase  of  late  years,  to  the  entangling  and  ruin  of  many 
families,  it  was  prayed  that  the  decree  of  dismission  might  be  affirmed, 
but  the  sanie^was  reversed.  ^ 


LOW  V.  BURRON. 

(Court  of  Chaucery,  1734.     3  P.  Wms.  262.) 

The  bill  was  for  an  account  of  the  rents  and  profits  of  divers  mes- 
suages and  lands  in  Warrington,  in  Lancashire,  on  this  case :    John 


Casson,  seised  of  an  estate^O£three  lives  in  the  premises,  by  his  will 
dated  the  12th  of  January,  1684^  deyised  them  to  his  daughter  Mary 
Mollinejix^r  life^^remainder  to  her  issue  male,  and  for  want  of  such, 
remaindeiLJ;o_one_Liiaiv,_under  whom  the  plaintiff  claimed.  Mary  Mol^ 
lineux,  by  lease  and  release,  conveyed  the  premiss,  in  consideration  of 
her  marriage  with  Edward  Burron,  to  the  use  of  herself  and  her  in- 
tended husband,  and  the  heirs  of  their  bodies,  remainder  to  the  heirs  of 
her  husband  Burron.  In  1705,  Mary  died  without  issue,  and  the  plain- 
tiff claiming  under  the  person  in  remainder,  now  brought  this  bill  for 
an  account  of  the  rents  and  profits. 

The  questions  were,  first.  One  having  an  estate  for  three  lives,  and 
devising  it  to  A.  in  tail^-Xemainder  to  B . , ^letherlthJs.X^mainder  was 
good?  2dly,  supposing  it  to  be  good,  whether  A.  by  such  lease  and 
release  could  bar  it  ?  ' 

As  to  the~first  it  was  said,  and  so  agreed  by  the  court,  that  the  limi- 
tation  of  an  estate  pur  autre  vie  to  A.  and  the  heirs  of  his  bodyT^iTaTces 
no  estate-taiT  in  A.  for  all  estates-tail  are  estates  ot  mhentance,  to 
which  dower  is  incident,  and  must  be  withintlie  Statute  De  Donrs ; 
whereas  in  this  kind  of  estate,  which  is  in  no  inheritance,  there  can  be 
no  dower,  neither  is  it  within  the  Statute,  but  a  descendible  freehold 
only. 

Also  the  Lord  ChancelIvOR  [Lord  Taecot]  held  plainly,  that  this 
was  a  good  remainder  to  B.  on  A.'s  death  without  issue,  it  being  no 
more  thana  description,  who  should  take  as  speciaPoccupants  durmg 
the~tives~ofthese  three  cestui  que  vies.  As  if  the  grantor  ha3~saM, 
"ifistead  of  a  wandering  right  of  general  occupancy,  I  do  appoint,  that 
after  the  death  of'  A.  the  grantee,  they  who  shall  happen  to  be  heirs  of 
the  body  of  A.  shall  be  special  occupants  of  the  premises;  and  if  there 
shall  be  no  issue  of  the  body  of  A.  then  B.  and  his  heirs  shall  be  the 
special  occupants  thereof."  And  that  here_canjbe  no  danger  of_a^er- 
petuity ;  for  all  thes^estates  wilL  determine  ori  the  expiration  of  the 
thfeeTTves!  So,  if  instead  of  three,  there  had  been  twenty  lives,  all 
spending  at  the  same  tirnej^^all  tHe~candles~!jghted^j.ip  afbrTce^tJyvould 


hav^ 


_    J^BeeiTgo^j^Tor^Tn  eltect,  it  is  onlyTor  one  hfe,  (viz 
shall  happen  to  be  the  survivor. 


thatjwhich 
T^of^wHich  reason,  it  were  very  im- 


Ch.  1)  THE   RULE   AND   ITS   COROLLARIES  413 

proper  to  call  this  an  estate-tail,  since  at  that  rate  it  would  not  be  liable 
to  a  forfeiture,  or  punishable  for  waste,  the  contrary  whereof  is 
true. 

2dly,  the  Lord  Chancellor  said,  that  though  by  a  lease,  or  by  a 
lease  and  release,  A.  might  bar  the  heirs  of  his  body,  as  in  some  re- 
spects claiming  under  him,  yet  he  inclined  to  think  A.  could  not  bar  the 
remainder  over  to  B.  who  was  in  the  nature  of  a  purchaser^  an^  would 
be  no  way  subjecTfo  the  encumbrances  of  A.  any  more  than  if  the  estate 
pur  autre  vie  had  been  limited  to  A.  for  Hfe,  remainder  to  B.  for  life; 
in  which  case  plainly  A.  could  not  bar  B.  especially  by  this  conveyance 
of  lease  and  release,  which  never  transfers  more  than  may  lawfully 
pass :  whereas  the  conveying  away  or  barring  the  remainder  limited  to 
B.  (admitting  it  to  have  been  a  good  remainder)  is  doing  a  wrong  to 
B.  and  depriving  him  of  an  estate,  which  w^as  before  lawfully  vested  in 
him.  Nay,  indeed,  il_seerned  Jyj^ Ji^im^^j;  if  no  act  which  A._could  do, 
would  be  capable  of  barring  this  limitation  over  to  B.  in  regard  there 
could  be  no  commonTecovery  suffered  thereof,  it  being  only  an  estate 
f oflfves  ;~~and  TTis~t70Tdship  saHTthaF  this"  (as  he  remembered)  w^as 
determined  in  the  case  of  Sir  Hardolph  Wasteneys  in  the  House  of 
Lords,  upon  an  appeal  from  this  court. 

But  notwithstanding  all  this,  yet,  it  appearing  that  the  right  of  the 
plaintiff,  and  of  those  under  whom  he  claimed,  had  accrued  so  long 
since  as  the  year  1705,  now  near  thirty  years  ago,  during  all  which 
time  the  defendant's  possession  had  been  unmolested,  and  the  Siatute 
of_L™itations  being  pleaded,  (though  it  was  urged,  that  the  plaintiff 
had  not  the  lease  in  his  possession,  and  that  the  defendant  in  his  plea 
had  set  forth,  that  the  lease  had  been  renewed :  and  though  it  was 
moreover  insisted,  that  however  the  plaintiff  might  be  disabled  from 
bringing  an  ejectment,  he  might  yet  bring  a  bill  in  equity ;)  the 
Lord  Chancellor  declared,  he  would  grant  no  relief  in  the  case  of 
so  stale  a  demand,  and  therefore  allowed  the  plea. 


JEE  V.  AUDLEY. 

(Court  of  Chancery,  1787.     1  Cox,  324.) 

Edward  Audley,  by  his  will,  bequeathed  as  follows,  "Also  my  will  is 
that  ilOOO  shall  be  placed  out  at  interest  during  the  life  of  my  wife, 
which  interest  I  give  her  during  her  life,  and  at  her  death  I  give  the 
said  £1000  untgji]iy_Jii£ce_Mary  Hall  and  the  issue  of  her  body  law- 


fuUy  begotten,  andto  be  begotten,  and  in  default  of  such  issue  I  give 
the  said  £1000  to  be  equally  divided  between  the  daughters  then  living 
of  my  kinsman  John  Jee  and  his  wife  Elizabeth  Jee." 

It  appeared  that  John.Jee_and  Elizabeth  Jee  wer"e  living  at  the  time 
of  the  death  of  the  testator,  had  four  daughters  and  no  son,  and  were 


414  RULE  AGAINST  PERPETUITIES  (Pait  4 

of  a  very  advanced  age.  Mary  Hall  was  unmarried  and  of  the  age  of 
about  40;  the  wife  was  dead.  The  present  bill  was  filed  by  the  four 
daughters  of_John  and  Elizabeth^Jee  to  have' the^TTOOO  secured  for 
tlieTr  ben"eSrupon  the  event  oTThe  sauOIary  HaH  dying  without  leav- 
ing children.  And  the  question  was,  whethej  the  limitation  to  the 
daughters^fjolinand^lizabeth  Jee  was  not  void  as  beingToo  reniote; 
and  to  prove  it  so,  itwas  said  that  this  was  to  take  effect  on  a  general 
failure  of  issue  of  Mary  Hall ;  and  though  it  was  to  the  daughters  of 
John  and  Elizabeth  Jee,  yet  it  was  not  confined  to  the  daugRtersniving 
at  the  death  of  the^testator^nd  consequently  it  might  extend~to  after- 
born  daughters,  in  which  case  it  would  not  be  within  thejimit  oT  a  life 
or  HvesTn  being  and  Zlyears  after  wards^beyond  which  time_an  execu- 
tory  devise  isjv'oid. 

On  the  other  side  it  was  said,  that  though  the  late  cases  had  decided 
that  on  a  gift  to  children  generally,  such  children  as  should  be  living 
at  the  time  of  the  distribution  of  the  fund  should  be  let  in,  yet  itwould 
be  very  hard  to  adhere  to  such  a  rule  of  construction  so  rigidly,  as  to 
defeat  tHe^  evident  iiifentlon  of  the  testator  in  this  case,  especially  ^i~^ 
there  was  no  real  possijjilityjjfjohn  and  Elizabeth  Jee  having  children 
after  the  testatoFs  deajh^they  beingMthen  70^ears  old;  that  if  there 
were  two  ways  of  construing  words,  that  should  be  adopted  which 
would  give  effect  to  the  disposition  made  by  the  testator;  that  the 
cases,  which  had  decided  that  after-born  children  should  take,  pro- 
ceeded on  the  implied  intention  of  the  testator,  and  never  meant  to  give 
an  effect  to  words  which  would  totally  defeat  such  intention. 

The  cases  mentioned  were  Pleydell  v.  Pleydell,  1  P.  \V.  748.  Forth 
V.  Chapman,  1  P.  W.  663.  Lamb  v.  Archer,  Salk.  225.  Rachel's  Case, 
cited  2  Vern.  60.  Smith  v.  Cleaver,  2  Vern.  38,  59.  Pollex.  38.  At- 
kinson V.  Hutchinson,  3  P.  W.  258.  Wood  v.  Saunders,  Pollex.  35. 
Hughes  V.  S'ayer,  1  P.  W.  534.  Cook  v.  Cook,  2  Vern.  545.  Horsley 
V.  Chaloner,  2  Vez.  83.  Coleman  v,  Seymour,  1  Vez.  209.  Ellison  v. 
Airy,  1  Vez.  111. 

Master  of  the  Rolls  [Sir  Lloyd  Kenyon].  Several  cases  deter- 
mined by  Lord  Northington,  Lord  Camden,  and  the  present  Chancel- 
lor, have  settled  that  children  born  after  the  death  of  the  testator  shall 
take  a  share  in  these  cases ;  the  difference  is,  where  there  is  an  imme- 
diate dex^ise,  and  where  there  is  an  interest  in  remainder :  in  the  for- 
mer case  the  children  living  at  the  testator's  death  only  shall  take: 
in  the  latter  those  who  are  living  at  the  time  the  interest  vests  in  pos- 
session; and  this  being  now  a  settled  principle,  I  shall  not  strain  to 
serve  an  intention  at  the  expense  of  removing  the  landmarks  of  the 
law ;  it  is  of  infinite  importance  to  abide  by  decided  cases,  and  perhaps 
more  so  on  this  subject  than  any  other.  The  general  principles  which 
apply  to  this  case  are  not  disputed :  tlie  hmkations  of  ^personal  estate 
are  void^  unless  they  necessarily  vest,  if  at  all^  within  a  life^oFTives 
iiTBeing  and  2ryeafs~oF'9''or  10  months  afterwards.     This  has  fjeen 


Ch.  1)  THE   RULE   AND   ITS   COROLLARIES  415 

sanctioned  by  the  opinion  of  judges  of  all  times,  from  the  time  of  the 
Duke  of  Norfolk's  Case  to  the  present:  it  is  grown  reverend  by  age, 
and  is  not  now  to  be  broken  in  upon ;  I  am  desired  to  do  in  this  case 
something  which  I  do  not  feel  my^elf_aliib£f£yItQl3aL  najnely  to  sup- 
pose~  It  impossiUIe  for  pe^rsons  in  so  advanced  an  age  as  John  and 
Elizabeth  Jee  to  have^children ;  but  if  this  can  be  done  in  one  case 
it  may  in  loiotherT^nd  it  is  a  very  dangerous  experiment,  and  intro- 
ductive  of  the  greatest  inconvenience  to  give  a  latitude  to  such  sort 
of  conjecture.  Another  thing  pressed  upon  me,  is  to  decide  on  the 
events  which  have  jiappenedXT^t"  I~cannordo  this  "without  overturn- 
ing very  many  cases.  The  single  question  before  me  is,  not  whether 
the  limitation  is^ood  in  the  events  which  have  happened,  but  whether 
it  "was  p-nnA  iri  its  crenTiony""arKT  "if  it  were  not.  I  cannot  make  it  so. 


Then  must  this  limitation,  if  at  all,  necessarily  take  place  within  the 
limits  prescribed  by  law?  The  words  are  "in  default  of  such  issue  I 
give  the  said  £1000  to  be  equally  divided  between  the  daughters  then 
living  of  John  Jee  and  Elizabeth  his  wife."  If  it  had  been  to  "dauglv 
ters  now  living,"  or  "who  should  be  living  at  the  time  of  my  death," 
it  would  have  been  very  good;  but  as  it  stands,  this  limitation  may 
take  in  after-born  daughters;  this  point  is  clearly  settled  by  Ellison 
V.  Airy,  and  the  effect  of  law  on  such  limitation  cannot  make  any 
difference  in  construing  such  intention.  If  then  this  will  extended 
to  after-born  daughters,  is  it  within  the  rules  of  law?  Most  certamly 
not,  because  lohn  and^  Elizabeth  Jee  might  have  children  born  ten 
years_after  JJMjegtator's  death,  and  then  Alary  Hall  might  die  without 
issue  50  years  afterwards ;  in  which  case  it  woj.ild  evidently  trans- 
gress the  rules  prescribedT  I  am  of  opinion  therefore,  though  the 
testStcrrmTght  possibly  mean  to  restrain  the  limitation  to  the  children 
who  should  be  living  at  the  time  of  the  death,  I  cannot,  consistently 
with  decided  cases,  construe  it  in  such  restrained  sense,  but  must 
intend  it  to  take  in  after-born  children.  This  therefore  not  being 
within  the  rules  of  law,  and  as  I  cannot  judge  upon  subsequent  events, 
I  think  the  limitation  void.  Therefore  dismiss  the  bill,  but  without 
costs. ^ 

1  Observe,  however,  that  in  I^iig  v.  Hodges,  Jac.  5S.5  (1822),  M.  was  en- 
titled to  tlie  dividends  of  the  sum  "standing  in  tlie  name  of  the  Accountant 
General,  which  in  the  event  of  her  dying  without  leaving  any  child  or  chil- 
dren who  should  arrive  at  the  age  of  twenty-one  was  to  devolve  upon  the 
plaintiffs.  M.,  having  no  children  and  being  of  the  age  of  sixty-nine  years, 
agreed  to  sell  her  interest  to  the  plaintiffs,  who  now  petitioned  for  a  trans- 
fer of  the  fund  in  question  to  them.  Held,  the  prayer  of  the  petition  was 
granted  upon  the  recognizance  of  the  plaintiffs. 


416  RULE  AGAINST  PERPETUITIES  (Part  4 

LONG  V.  BLACKALU 

(Court  of  King's  Beuch,  1797.     7  T.  R.  100.) 

A  case  sent  from  the  Court  of  Chancery  for  the  opinion  of  the  jnd^£^es 
of  this  court  stated  that  George  Blackall  being  possessed  of  a  certain 
messuage  and  premises  in  Great  Hiizeley  in  the  county  of  Oxford,  held 
by  lease  for  years  under  the  Dean  and  Canons  of  Windsor,  by  will 
dated  23d  April  1709  directed  that  his  wife  should  possess  the  mansion 
house  during  her  widowhood,  and  receive  the  rents  and  profits  of  the 
residue  of  the  premises  until  she  should  marry  or  die,  or  until  one  of 
his  sons  should  attain  the  age  of  twenty-one  years,  which  should  first 
happen;  and  from  and  after  the  death  or  marriage  of  his  said  wife, 
which  should  first  happen,  as  for  and  concerning  the  said  mansion 
house,  and  as  for  and  concerning  the  residue  of  the  premises  from  and 
after  the  death  or  marriage  of  his  said  wife,  or  the  time  that  one  of  his 
sons  should  attain  the  age  of  twenty-one,  which  should  first  happen,  he 
bequeathed  the  same  to  his  son  Thomas  for  life,  and  after  his  decease 
then  to  such  issue  male  or  the  descendants  of  such  issue  male  of  Thom- 
as as  at  the  time  of  his  death  should  be  his  heir  at  law ;  and  in  case  at 
the  time  of  the  death  of  Thomas  there  should  be  no  such  issue  male  nor 
any  descendants  of  such  issue  male  then  living,  then  he  bequeathed  the 
same  in  trust  to  his  (the  testator's)  son  George  Sawbridge  for  life, 
and  after  his  decease  then  to  such  issue  male  or  the  descendants  of 
such  issue  male  of  his  said  son  as  at  the  time  of  his  death  should  be  his 
heir  at  law ;  and  in  case  at  the  time  of  the  death  of  the  said  George 
Sawbridge  there  should  be  no  such  issue  male  nor  any  descendants  of 
such  issue  male  then  living,  then  he  bequeathed  the  said  premises,  &c. 
to  the  child  with  which  his  (the  testator's)  wife  was  then  ensient,  in 
case^ilr-siTcrald  be  a  son;  during^  hisjife,  andnTTter  his  decease  tlien  to 
such  issue  male  or  the  descendants  of  such  issue  rnale  of  such  child  as 
aTthe  time  of  TTis~death^hoirnn3eTns  herr  at  Taw ;  and  in  case  at  the 
time  of  thelfeath  of  such  child  there  sliould  be  no  such  issue  maTelior 
any  descendants~of~such  issue  male  then  living,  or  in  case  sucK_chila 
should  not  Tje^'son,  then  heljequeathed  the  same  to  Philippa  Long^her 
executors,  &c.  The  testator  died  on  the  1st  of  June  1709,  leaving  Tifs 
wife  ]\iartha  and  two  sons,  Thomas  and  George  Sawbridge  Blackall, 
him  surviving ;  the  executors  named  in  the  will  proved  the  same  in  the 
proper  Ecclesiastical  Court  and  assented  to  the  above  bequest.  Mar- 
tha Blackall,  the  wife  of  the  testator,  at  the  time  of  making  his  will 
and  of  his  death,  was  ensient  with  a  son,  who  was  afterwards  born 
and  called  John  Blackall ;  and  Martha  Blackall  afterwards  died  on  the 
16th  September  1768.  George  Sawbridge  Blackall  died  on  the  14th 
of  April  1753,  without  issue.  John  Blackall  died  on  the  5th  March 
1754,  without  issue;  and  Thomas  Blackall  died  on  the  2d  March  1786, 
without  issue. 


Ch.  1)  THE   RULE  AND   ITS  COROLLARIES  417 

The  question  directed  to  be  made  by  the  Lord  Chancellor  for  the 
opinion  of  the  Court  of  King's  Bench  was,  "Whether  the  hmitation  to 
Phihppa  Long  were  good  in  the  events  that  have  happened?" 

Lord  Kenyon,  C.  J.  The  rules  respecting  executory  devises  have 
conformed  to  the  rules  laid  down  in  the  construction  of  legal  limita- 
tions, and  the  courts  have  said  that  the  estate  shall  not  be  unalienable 
by  executorydevises  for  a  longertime  than  is  allowed  by  the  limitations 
ot  a  common  Taw  conveyance!  In  marriage  settlements  the  estate  may 
be  limited  to  tlTe  first  and'other  sons  of  the  marriage  in  tail,  and  until 
the  person  to  whom  the  last  remainder  is  limited  is  of  age  the  estate  is 
unalienable.  In  conformity  to  that  rule  the  courts  have  said  so  far  we 
will  allow  executory  devises  to  be  good.  To  support  this  position  I 
could  refer  to  many  decisions :  but  it  is  sufficient  to  refer  to  the  Duke 
of  Norfolk's  Case,  3  Ch.  Cas.  1 ;  Pollexf.  223,  in  which  all  the  learning 
on  this  head  was  gone  into ;  and  from  that  time  to  the  present  every 
judge  has  acquiesced  in  that  decision.  It  is  an  established  rule  that  an 
executory  devise  is  good  if  it  must  necessarily  happen  within  a  life  or 
livggjn^eing'and  twenty-one  yeaTs,  and  the  fraction  of  another  year, 
allowing  for  the  time  of  gestation. 

Lawrence,  J.  The  de\'Tse  over  in  this  case  must  take  effect,  if  at 
all,  after  a  life  which^iiisinDe'TirljemglTirie^months  after  the  devisor's 
dealE!  ~~~~' 

'Fhe  following  certificate  was  afterwards  sent  to  the  Lord  Chancellor. 

This  case  has  been  argued  before  us  by  counsel.  We  have  considered 
it,  and  are  of  opinion  that  the  limitation  to  Philippa  Long  is  good  in  the 

events  that  have  happened.'  ~ — "  -         ■ 

Kenyon,  N.  Grose. 

W.  H.  AsHHURST,        S.  Lawrence. 

February  27,  1797.2 

2  In  Goodtitle  d.  Giirnall  v.  Wood,  23d  of  June,  1740,  C.  B.,  Ld.  Ch.  J. 
Willes,  in  delivering  the  opinion  of  the  court,  said,  "they  (namely,  execu- 
tory devises)  have  not  been  considered  as  bare  possibilities,  but  as  certain 
interests  and  estates,  and  have  been  resembled  to  contingent  remainders  in 
all  other  respects,  only  they  have  been  put  under  some  restraints  to  prevent 
perpetuities ;  as,  first,  it  was  held  that  the  contingency  must  happen  within 
the  compass  of  a  life  or  lives  in  being  or  a  reasonable  nuanber  of  years ;  at 
length  it  was  extended  a  little  farther,  namely,  to  a  child  in  ventre  sa  mere 
at  the  time  of  the  father's  death,  because  as  that  contingency  must  neces- 
sarily happen  within  less  than  nine  months  after  the  death  of  a  person  in 
being,  that  construction  would  introduce  no  inconvenience ;  and  the  rule  has 
in  many  instances  been  extended  to  twenty-one  years  after  the  death  of  a 
person  in  being,  as  in  that  case  likewise  there  is  no  danger  of  a  perpetuity." 
MS.— Sep. 

See,  also.  In  reWilmer's  Trusts.  [1903]  2  Ch.  411,  where  the  child  in 
ventre  samereJ3rris' treated  as  i\  lifp  in  imping  iii  applying  the  rule~agaihijt 
peri)etuiries,  although  it  was  in  that  child's  interest  when  born  not  to~^ 
Bfltreatgd.  "^ 

4^Ai.Es  Prop. — 27 


418 


BULE  AGAINST  TEUPETUITIES 


(Part  4 


THELLUSSON  v.  WOODFORD. 
(House  of  Lords,  1805.    11  Yes.  112.) 3 

This  case  was  argued  on  several  days  at  the  bar  of  the  House  by 
Mr.  Mansfield  and  Mr.  Romilly,  for  the  appellants,  and  by  the  Attor- 
ney-General [Hon.  Spencer  Perceval],  the  Solicitor-General  [Sir  T. 
M.  Sutton],  Mr.  Piggott,  Mr.  Richards,  Mr.  Alexander,  and  Mr.  Cox, 
for  the  respondents.  After  the  argument  the  following  questions 
were  proposed  to  the  judges  on  the  motion  of  the  Lord  ChancelTcjr 
[Eldon]  r 

1st,  A  testator  by  his  will,  being  seised  in  fee  of  the  real  estate, 
therein  mentioned,  made  the  following  devise :  "I  give  and  devise  all 
my  manors,  messuages,  tenements,  and  hereditaments,  at  Brodsvvorth 
in  the  county  of  York  after  the  death  of  my  sons  Peter  Isaac  Thellus- 
son  George  Woodford  Thellusson  and"'Charles  TheniTssoiT~aTid"'otjny 
grandsonjohn  Thellusson  son  of  my  son  Peter  Isaac  Thellusson  and 
of  such  other  sons  as  my  said  son  Peter  Isaac  Thellusson  may  have 
a nd  oTiuc^^sons'as  my  said  sons  George  Woodford  iTiellussdn'and' 
Charles  Thellusson  m.avTiave  a"hJ  of  suchissue  as^ch  sons  may  Tiave 
as  shalTbe  livin"g"arthe  time  of  my  decease  or  born  in^due  time  after- 
wards and  aft^  the  deaths  oTTHe^surYivnrs  and_survivor^fjthe^everal 
person"s~aToresai^to  such  person_as_at  the  time  of_the_death  ol^e 
surYi3£Q£_pf  the  _s^ai3  ^everaTpefsons  shall  then  be  the  eldest  male 
lineal  descendant  of  my  sonJPeter  Isaac  Tlienussorfand  hisTieifsToi- 
ever.''  At  the  tifRe  of  theHFestator's  Tieath  There~were  seven  persons 
a  ctuaJly^jDornT^iTswen  i^^ 

will ;    and~tliere  were  two  en  ventre  sa  mere  answering  the  descrip- 
tJQU-Ljf  ^jiiT5ren'  en  ventre  sa  mere  do  ans^yerTHST'descriptioti.     All  _ 
the  said  several  persons,  so  describedn[rrthe  testator's  wTU'lDeing  dead, 
and,  at  the  death  of  the~survivgr~qrsuc"irseveral  pgrgofi&-Lli£r£L,bej n^^ 
living  one  male  lineal  descendant^oFTHe^tesjatoFsr'sUTr'Pgtg^ 
Thellusson^_aildL-Qlie  onTy^     Is~such  person  entitled  by  law,  underjthe 
legal  effect  of  the  devise  above  stated,  and  the  TegaFcohst ruction  of 
the  severarwbrdsTiTrwhich  the  same  is  expressed,  to  the  sai3~manors, 
messuages,  tenerrreiifs7  and  hefe^anientSj^  at  Brodswortli  ? 

2d,  JLat2a£ldeaiIxj^l.the  survivor  of_sucli  several  persons  as  afore- 
said, such  only  male  lineal  descendant  was  not  actually  born^Jbutjvvas 
en  ventre^  sa  mere,  would  such  lineal  descendant,  when  actually  born, 
be  so  entitled? 

June~25Fh.  The  unanimous  opinion  of  the  judges  was  pronounced 
by  the  Lord  Ciiie;f  Baron  Macdonald.  The  other  judges  present 
were  Lord  Elle.vborough,  Grose;,  L^  Blanc,  Heath,  Rooke, 
Chambri:;  Barons  Thomson  and  Graham.  Since  the  argument 
Lord  Alvanley  had  died ;  and  Baron  Hotham  resigned ;  the  former 


3  Statement  of  facts  omitted. 


Ch.  1)  THE   RULE  AND   ITS   COROLLARIES  419 

being  succeeded  by  Sir  James  j\lANsr'iE;LD ;   the  latter  by  Sir  T.  M. 
Sutton. 

Sir  a.  Macdonald,  Chief  Baron.  The  first  objection  to  the  will  is, 
that  the  testator  has  exceeded  that  portion  of  time,  within  which  the 
contingency  must  happen,  upon  which  an  executory  devise  is  per- 
mitted to  be  limited  by  the  rules  of  law;  for  three  reasons :  First,  be- 
'cause  so  great  a  number  of  lives  cannot  be  taken  as  in  the  present 
instance,  to  protract  the  time,  during  which  the  vesting  is  suspended, 
and  consequently  the  power  of  alienation  is  suspended :  Secondly, 
that  the  testator  has  added  to  the  lives  of  persons,  who  should  be 
born  at  the  time  of  his  death,  the  lives  of  persons  who  might  not  be 
born :  Thirdly,  that  after  enumerating  dififerent  classes  of  lives,  dur- 
ing the  continuance  of  which  the  vesting  is  suspended,  the  testator 
has  concluded  with  these  restrictive  words,  "as  shall  be  living  at  the 
time  of  my  decease  or  born  in  due  time  afterwards ;"  and  that,  as 
these  words  appertain  only  to  the  last  class  in  the  enumeration,  the 
words,  which  are  used  in  the  preceding  classes  being  unrestricted, 
they  will  extend  to  grandchildren  and  great-grandchildren,  and  their 
issue ;  and  so  make  this  executory  devise  void  in  its  creation,  as  being 
too  remote.  With  respect  to  the  first  ground,  namely,  the  number  of 
lives  taken,  which  in  the  present  instance  is  nine,  I  apprehend,  that  no 
case  or  dictum  has  drawn  any  line  as  to  this  point,  which  a  testator  is 
forbidden  to  pass.  On  the  contrary,  in  the  cases,  in  which  this  subject 
has  been  considered,  by  the  ablest  judges,  they  have  for  a  great  length 
of  time  expressed  themselves  as  to  the  number  of  lives,  not  merely 
without  any  qualification  or  circumscription,  but  have  treated  the 
number  of  co-existing  lives  as  matter  of  no  moment ;  the  ground  of 
that  opinion  being,  that  n^ojublic  inconvenience  can  arise  Jrom  a  sus- 
pension  of  the  vesting,  and  thereby  placing  land  out  of  circulation 
during  any  one  life ;  and  that  in  fact  the  life  of  the  survivor  of  many 
persOtiriiamed  or  "5escribegns~5"ut  the  life~of~STJTrre^  one.  Thfsnfva^- 
held  without  dissent  by  Twisden  in  Love  v.  Wyndham,  1  Mod.  50, 
twenty  years  before  the  determination  of  the  Duke  of  Norfolk's  Case ; 
who  says,  that  the  devise  of  a  farm  may  be  for  twenty  lives,  one  after 
another,  if  all  be  in  existence  at  once.  By  this  expression  he  must 
be  understood  to  mean  any  number  of  lives,  the  extinction  of  which 
could  be  proved  without  difiiculty.  When  this  subject  of  executory 
trusts  came  to  be  examined  by  the  great  powers  of  Lord  Nottingham 
as  to  the  time,  within  which  the  contingency  must  happen,  he  thus  ex- 
presses himself :  "If  a  term  be  devised,  or  the  trust  of  a  term  limited, 
to  one  for  life  with  twenty  remainders  for  life  successively,  and  all  the 
persons  are  in  existence  and  alive  at  the  time  of  the  limitation  of  their 
estates,  these,  though  they  look  like  a  possibility  upon  a  possibility, 
are  all  good,  because  they  produce  no  inconvenience ;  they  wear  out 
in  a  little  time."  With  an  easy  interpretation  we  find  from  Lord  Not- 
tingham, what  that  tendency  to  a  perpetuity  is,  which  the  policy  of 


420  RULE  AGAINST  PERrETUiTiES  (Part  4 

the  law  has  considered  as  a  public  inconvenience ;  namely,  where  an 
executory  devise  would  have  the  effect  of  making-  lands  unalienable 
beyond  the  time,  which  is  allowed  in  legal  limitations ;  that  is,  be- 
yond the  time,  at  which  one  in  remainder  would  attain  his  age  of 
twenty-one ;  if  he  were  not  born,  when  the  limitations  were  executed. 
\\'hen  he  declares,  that  he  will  stop,  where  he  finds  an  inconvenience, 
he  cannot,  consistently  with  sound  construction  of  the  context,  be 
understood  to  mean,  where  judges  arbitrarily  imagine,  they  perceive 
an  inconvenience ;  for  he  has  himself  stated,  where  inconvenience  be- 
gins ;  namely,  by  an  attempt  to  suspend  the  vesting  longer  than  can 
be  done  by  legal  limitation.  I  understand  him  to  mean,  that,  where- 
ever  courts  perceive,  that  such  would  be  the  effect,  whatever  may  be 
the  mode  attempted,  that  effect  must  be  prevented ;  and  he  gives  the 
same,  but  no  greater,  latitude  to  executory  devises  and  executory 
trusts  as  to  estates  tail.  This  has  been  ever  since  adopted.  In  Scat- 
terwood  v.  Edge,  1  Salk.  229,  the  court  held,  that  an  executoix^at^_ 
to  arise  within  the  compass  of  a  reasonable  tinie,  is  good ;  as  twenty 
or  thirty  years:  so  is  the"  corhipass  of  a  life  or  lives7~for  let  the  lives 
be  never  sO'  many,  there  must  be  a  sur\'ivor;  and  so  it  is  but  the 
length  of  that  life.  In  Humberston  v.  Humberston,  1  P.  Wms.  332, 
where  an  attempt  was  made  to  create  a  vast  number  of  estates  for  life 
in  succession,  as  well  to  persons  unborn  as  to  persons  in  existence, 
Lord  Cowper  restrained  that  devise  within  the  limits  assigned  to 
common  law  conveyances,  by  giving  estates  for  life  to  all  those,  who 
were  living  (at  the  death  of  the  testator),  and  estates  tail  to  those, 
who  were  unborn ;  considering  all  the  co-existing  lives  (a  vast  many 
in  number)  as  amounting  in  the  end  to  no  more  than  one  life.  His 
lordship  was  in  the  situation  alluded  to  by  Lord  Nottingham,  where 
a  visible  inconvenience  appeared.  The  bounds  prescribed  to  Hniita- 
tions  in  common  law  conveyances  were  exceeded:  the  excess  was 
cut  off ;  and  the  devise  confined  within  those  limits.  Lord  Hardwicke 
repeats  the  same  doctrine  in  Sheffield  v.  Lord  Orrery,  3  Atk.  282; 
using  the  words  "life  or  lives"  without  any  restriction  as  to  number. 
Many  other  cases  might  be  cited  to  the  like  effect :  but  I  shall  only 
add  what  is  laid  down  in  two  very  modern  cases.  In  Gurnall  v. 
Wood,  Willes,  211,  Lord  Chief  Justice  Willes  speaks  of  a  life  or  lives 
without  any  qualification ;  and  Lord  Thurlow,  in  Robinson  v.  Hard- 
castle,  2  Bro.  C.  C.  30,  says,  that  a  man  may  appoint  100  or  1000  trus- 
tees, and  that  the  survivor  of  them  shall  appoint  a  Hfe  estate.  It 
appears  then,  that  the  co-existing  lives,  at  the  expiration  of  which  the 
contingency  must  happen,  are  not  confined  to  any  definite  number. 
But  it  is  asked,  shall  lands  be  renderedunalienal3l£_dut^^ 

jvy  large  societies  or  bodies  of 


Ch.  1)  THE   RULE   AND   ITS   COROLLARIES  421 

may  be  answered,  that,  when  such  cases  occur,  tliej^  will,  according 
to  their  respective  circumsTalTcesrt)e"~plTt  to  tHe  usual  tesj:,  whether 
they^wirTor  will  not  tend  to  a  perpetuity,  by  rendering  it  almost,  if 
not  qiTTfe^Trnpracticable  to  ascertain  the  extinction  oT  the  lives  describ- 
ed ;~andrwiinDe  supported  or  avoided  accordingly.  But  It  is  contend^ 
ed,  that  irTtHese  and  other  cases  the  persons,  during  whose  lives  the 
suspension  was  to  continue,  were  persons  immediately  connected  with 
or  immediatelyjeading  to  the  person,  in  whom  tTie  property  was  first 
to  vest,  when  the  suspension  should  be  at  an  end.  I  am  unable  to 
find  'sny'^autTibr  ity^fdr  considering  this  as  a  sinequa  rion  in  the  crea^ 
tioTToFa  good~executof ylrust.    It  is  true  that  this  will  almost  always 


be  the  case  and  mode  of  disposing  of  property,  introduced  and  en- 
couraged up  to  a  certain  extent,  for  the  convenience  of  families ;  in 
almost  all  instances  looking  at  the  existing  members  of  the  family  of 
the  testator  and  its  connections.  But  when  the  true  reason  for  cir- 
cumscribing the  period,  during  which  alienation  may  be  suspended, 
is  adverted  to,  there  seems  to  be  no  ground  or  principle,  that  renders 
such  an  ingredient  necessary.  The  principle  is  the  avoiding  of  a  pub- 
lic'evil  by  placing  property  for  too  great  a  length  of  time  out  of  com- 
merce. The  length  of  time  will  not  be  greater  or  less,  whether  the 
lives  taken  have  any  interest,  vested  or  contingent,  or  have  not ;  nor, 
whether  the  Hves  are  those  of  persons  immediately  connected  with,  or 
immediately  leading  to  that  person  in  whom  the  property  is  first  to 
vest :  terms,  to  which  it  is  difficult  to  annex  any  precise  meaning. 
The  policy  of  the  law,  which,  I  apprehend,  looks  merely  to  duration 
of  time,  can  in  no  way  be  affected  by  those  circumstances.  This  could 
not  be  the  opinion  of  Lord  Thurlow  in  Robinson  v.  Hardcastle :  nor 
is  any  such  opinion  to  be  found  in  any  case  or  book  upon  this  subject. 
The  result  of  all  the  cases  upon  this  point  is  thus  summed  up  by 
Lord  Chief  Justice  Willes,  (Willes,  215,)  with  his  usual  accuracy  and 
perspicuity : 

"Executory  devises  have  not  been  considered  as  mere  possibilities, 
but  as  certain  interests  and  estates ;  and  have  been  resembled  to  con- 
tingent remainders  in  all  other  respects":  only  they  have  been  put 
under  some  restraints,  to  prevent  perpetuities.  As  at  first  it  was  held, 
that  the  contingency  must  happen  within  the  compass  of  a  life  or  lives 
in  being,  or  a  reasonable  number  of  years ;  at  length  it  was  extended 
a  little  farther,  namely,  to  a  child  en  ventre  sa  mere  at  the  time  of  the 
father's  de^th ;  because,  as  that  contingency  must  necessarily  happen 
within  less  than  nine  months  after  the  death  of  a  person  in  being,  that 
construction  would  introduce  no  inconvenience ;  and  the  rule  has  in 
many  instances  been  extended  to  twenty-one  years  after  the  death  of 
a  person  in  being;  as  in  that  case  likewise  there  is  no  danger  of  a 
perpetuity." 


422 


RULE   AGAINST   PERPETUITIES 


(Part  4 


Comparing  what  the  testator  has  done  in  the  present  case  with  what 
is  above  cited,  it  will  appear,  that  he  lias  not  postponed  the  vesting 
even  sojong  as  he  might  havedone.* 

THe'second  objection,  whiclTTias  been  made  in  this  case  is,  that  the 
testator  has  added  to  the  lives  of  persons  in  being  at  the  time  of  his 
decease  those  of  persons  not  then  born.    It  becomes,  therefore,  neces^ 
sary  to  discover,  in  what  sense  the  testator  meant  to  use  the  words. 
*l3ofrnirdue  time  afterwards."     Such  words,  in  the  case  of  a  man's 

WHaFis  to  be  intended  by 


rfen7i-neaTrttre  time  of  gestation. 

)eTolTecte3  from  the  will  itself. 


It  may 


own  chT 

tliese"words  in  his  will,  musT 
be  collected  from  the  will  itself,  that  by  those  word^the  testator 
riTeantJo^escfib£3liE=5iEriD^^ 

born^  during^vhose  lives  the  trust  might  legally  continue ;  or  in  other^ 
wordiT^vvTTomThTi^rv^rwOiitd^^  born  at_tlie_time  of  his  de- 

cease^  These  could  only  be  such  chilclren  ofTHe  several  persons  nam- 
ed"^ their  respective  mothers  were  enceinte  wdth  at  the  time  of  his 
death.  He_may  have  meant  to  useJhe_word_"due"  as  d_eiiQting  that 
period  of  tune,  which  would  be  thejiecessary  period  for^effectingjiis 
purpose.  This  is  probable  from  his  using  the  same  word,  as  applied 
to  the  time,  during  which  the  presentation  to  the  living  of  Marr  might 
be  suspended  without  incurring  a  lapse.  That  a  child  en  ventre  sa 
mere  was  considered  as  in  existence,  so  as  to  be  capable  of  taking  by 
executory  devise,  was  maintained  by  Powell  in  the  case  of  Lodding- 
ton  V,  Kime,  1  Lord  Raym.  207,  upon  this  ground ;  that  the  space  of 
time  between  the  death  of  the  father  and  the  birth  of  the  posthumous 
son  was  so  short,  that  no  inconvenience  could  ensue.  So  in  Northey 
V.  Strange,  1  P.  Wms.  340,  Sir  J.  Trevor  held,  that  by  a  devise  to 

4  In  Pownall  v.  Graham,  33  Beav.  242,.  there  was  a  devise  iu  trust  for 
the  testator's  brothers  for  life,  and  on  the  death  of  the  survivor,  to  applying 
the  income  for  the  benefit  nL-Sueh  of  their  chlTdren  sis^'glnruTa-'appear  lojhe 
trusT^£jo  "'^sniTnt'Tnosr3njaeed_ijLj^ie--saffiet_^^  f fgm~yeai' 

to"yearNas  the  law  15~su£EIcaaes^admitg,'/^indr"'^^^  mentlongd: 

befoi-e,  admits  of  no  further  divTsi^ITaniong  S'Ugh'oTmy  brothers'  childrenT'. 
thelTaveE — Held,  that  the  trust  tor  division  amongi  tne  cnudren  of~nie  broth-" 
ers  ceajaitl— twenty-one  yggrgigTIeFTtTe"  decease  of  the  strrviiring  brother: 

l^'l^^MooreTTT'lirTfeQl]  1  CKT^oO,  a  testator  berfaeattigd  personal  prop- 
erty in  trust  to  apply  the  income  in  keeping  in  repaiiMier  brother's  tonib  in 
Africa,  "for  tlTenoii!?e'?t~l^ff6cl'TrTroWgTt''l?rTaw^  that  is  to^iiyZ^iTil  the  pe- 
riod  of  twenty-one  years  irom^  tne  death  of  tTJg'Tast^siTrvTvor  of~all  persons 
who-^niallbe  liviiis_atjQy  death."    Held,  thelegacy  was  ^-otd-ftrr-HttcerLaluly. 

IiTFittMrTTBrownrSTri:.  S.  321,  29  Sup.  Ct.  106,  ST  L.  Ed.  2U2r^ie 
testator  directed  that  the  residue  of  his  estate  should  be  "placed  in  trust 
for  as  long  a  period  as  is  legally  possible,  the  termination  or  ending  of  said 
trust  to  take  place  when  the  law  requires  it."  He  appointed  a  trustee  and 
directed  the  payment  of  annuities  to  a  considerable  number  of  named  per- 
sons for  life,  and  on  their  death,  to  their  heirs  (with  the  exception  of  three 
who  were  given  only  life  interests).  "On  the  final  ending  and  distribution 
of  the  tnist,  the  trust  fund  to  be  divided  eriually  among  those  persons  enti- 
tled at  that  time  to  the  aforementioned  annuities."  Held,  that  the  trust 
continued  for  tv/enty-one  years  after  the  death  of  all  the  persons  named  as 
annuitants  and  that  the  gift  for  distribution  at  the  end  of  the  trust  was 
valid. 


Ch.  1)  THE   RULE   AND   ITS   COROLLAPJES  423 

children  and  grandchildren  an  unborn  grandchild  should  take.  Two 
years  after,  Lord  ^Macclesfield  in  Burdet  v.  Hopegood,  1  P.  Wms. 
486,  held,  that,  where  a  devise  was  to  a  cousin  if  the  testator  should 
leave  no  son  at  the  time  of  his  death,  a  posthumous  son  should  take, 
as  being  left  at  the  testator's  death.  In  Wallace  v.  Hodgson,  2  Atk. 
117,  Lord  Hardwicke,  held,  that  a  posthumous  child  was  entitled  under 
the  Statute  of  Distributions;  and  his  reason  deserves  notice.  "The 
principal  reason  (says  he)  that  I  go  upon  is,  that  the  plaintiff  was  en 
ventre  sa  mere  at  the  time  of  her  brother's  death,  and  consequently  a 
person  in  rerum  natura :  so  that  by  the  rules  of  the  common  and  civil 
law  she  was,  to  all  intents  and  purposes,  a  child,  as  much  as  if  born 
in  the  father's  lifetime."  Such  a  child,  in  charging  for  the  portions 
of  other  children  living  at  the  death  of  the  father,  is  included  as  then 
living:  Beale  v.  Beale,  1  P.  Wms.  244,  and  so  in  a  variety  of  other 
cases.  In  Basset  v.  Basset,  3  Atk.  203,  Lord  Hardwicke  decreed  rents 
and  profits,  which  had  accrued  at  a  rent-day  preceding  his  birth,  to  a 
posthumous  child;  and  since  the  Stat.  10  and  11  W.  Ill,  c.  16,  such 
children  seem  to  be  considered  in  all  cases  of  devise,  and  marriage  or 
other  settlement,  to  be  living  at  the  death  of  their  father,  although  not 
born  till  after  his  decease.  It  is  otherwise  considered  in  the  case  of 
descent.  In  Roe  v.  Quartlcy,  1  Term  Rep.  634,  the  devise  was  to  Hes- 
ter Read  for  life,  daughter  of  Walter  Read,  and  to  the  heirs  of  her 
body ;  and  for  default  of  such  issue  to  such  child  as  the  wife  of  Walter 
Read  is  now  enceinte  with,  and  the  heirs  of  the  body  of  such  child, 
then  to  the  right  heirs  of  Walter  Read  and  ]Mary  his  wife.  It  was 
contended,  that  the  last  limitation  was  too  remote ;  as  coming  after 
a  devise  to  one  not  in  being,  and  his  issue.  But  the  court  said,  that 
since  the  Statute  of  King  William,  wdiicli  puts  posthumous  children 
on  the  same  footing  with  children  born  in  the  lifetime  of  their  ances- 
tor, this  objection  seemed  to  be  removed,  whatever  was  the  case  be- 
fore. In  Gulliver  v.  Wickett,  1  Wils.  105,  the  devise  was  to  the  wife 
or  life,  then  to  the  child,  with  which  she  was  supposed  to  be  enceinte, 
in  fee,  provided,  that,  if  such  child  should  die  before  twenty-one  leav- 
ing no  issue,  the  reversion  should  go  to  other  persons  named.  The 
court  said,  if  there  had  been  no  devise  to  the  wife  for  life,  which  made 
the  ulterior  estate  a  contingent  remainder,  the  devise  to  the  child  en 
ventre  sa  mere,  being  in  futuro,  would  have  been  a  good  executory 
devise.  In  Doe  v.  Lancashire,  5  Term  Rep.  49,  the  Court  of  King's 
Bench  has  held,  that  marriage  and  the  birth  of  a  posthumous  child 
revoke  a  will,  in  like  manner  as  if  the  child  had  been  born  in  the  life- 
time of  the  father.  In  Doe  v.  Clarke,  2  H.  Black.  399,  Lord  Chief 
Justice  Eyre  holds,  that  independent  of  intention  an  infant  en  ventre 
sa  mere  by  the  course  and  order  of  nature  is  then  living;  and  comes 
clearly  within  the  description  of  a  child  living  at  the  parent's  decease ; 
and  he  professes  not  to  accede  to  the  distinction  between  the  cases,  in 
which  a  provision  has  been  made  for  children  generally,  and  where 


424  RULE   AGAINST  TERPETUITIES  (Part  4 

the  testator  has  been  supposed  to  mark  a  personal  affection  for  chil- 
dren, who  happened  to  be  actually  born  at  the  time  of  his  death.  The 
most  recent  case  is  that  of  Long  v.  Blackall,  3  Ves.  Jr.  486 ;  7  Term 
Rep.  100.  There  the  Court  of  King's  Bench  had  no  doubt,  that  a 
devise  to  a  child  en  ventre  sa  mere  in  the  first  instance  was  good,  and 
a  limitation  over  was  good  also,  on  the  contingency  of  there  being  no 
issue  male  or  descendant  of  issue  male  living  at  the  death  of  such 
posthumous  child.  It  seems  then,  jthat  if  estates  for  life  had  been 
given  to  the  several  cestlus  que  vie  in  this  wiTF,  and  after  their  deaTlis 
to  t!Teir^children^eiUieFl5orh~of~en'v"e"nfre  sa  mere^aObe  testator's 
death,  they  would  haA^e  been  "good,  l^o  Tendency  lo  perpetuity  Then 
can  arise  in  the  case  oFsuclritves  being  taken,  not  to  confer  on  them 
a  measure  of  the  beneficial  interest,  but  to  fix  the  time,  during  which 
the  vesting  of  the  property,  which  is  the  subject  of  this  devise,  shall 
be  protracted ;  inasmuch  as  the  circulation  of  real  property  is  no  more 
fettered  in  one  case  than  in  the  other.  It  j^Jioweyer^observable, 
that  this  question  may  never  arise,  if  it  shall  so  happenTthatTlie  chiP' 
drenJix-^intrellglgtris  at  the~deatlrof~tIienLestator^hall  not  survive 
those,  who  were  then  born. 

The  third~ground  of  objection  depends  upon  the  application  of  the 
restrictive  words,  which  are  added  to  the  enumeration  of  the  different 
classes  of  persons,  during  whose  lives  the  restriction  is  suspended. 
This  objection,  I  conceive,  will  be  removed  by  the  application  of  the 
usual  rules  in  construing  wills  to  the  present  case.  First,  where  the 
intention  of  the  testator  is  clear,  and  is  consistent  with  the  rules  of 
law,  that  shall  prevail.  His  intention  evidently  was  to  prevent  aliena- 
tion as  long  as  by  law  he  could.  If  then  it  is  to  be  supposed,  that  the 
restrictive  words  are  to  be  confined  to  the  last  of  seven  different  de- 
scriptions of  persons,  and  that  the  testator  intended  to  leave  the  four 
descriptions  of  persons  which  immediately  preceded  this  7th  class, 
without  the  benefit  of  such  restriction,  although  they  equally  stand  in 
need  of  it,  we  must  do  the  utmost  violence  to  all  established  rules  on 
this  head.  That  construction  is  to  be  adopted,  which  will  support  the 
general  intent.  The  grammatical  rule  of  referring  qualifying  words 
to  the  last  of  the  several  antecedents,  is  not  even  supposed  by  gram- 
marians themselves  to  apply,  when  the  general  intent  of  a  writer  or 
speaker  would  be  defeated  by  such  a  confined  application  of  them. 
Reason  and  common  sense  revolt  at  the  idea  of  overlooking  the  plain 
intent,  which  is  disclosed  in  the  context ;  namely,  that  they  should  be 
applicable  tO'  such  classes  as  require  them,  and  as  to  the  others  to 
consider  them  as  surplusage.  If  words  admit  of  more  constructions 
than  one,  that,  which  will  support  the  legal  intention  of  the  testator, 
is  in  all  cases  to  be  adopted.  I  do  not  trouble  your  Lordships  with 
any  observation  upon  the  objections  arising  from  the  magnitude  of 
the  property  in  question ;  either  as  it  now  stands,  or  may  hereafter 
stand ;  or  as  to  the  motives,  which  may  have  influenced  this  testator. 


Ch.  1)  THE   RULE   AND   ITS   COROLLARIES  425 

or  his  neglect  of  those  considerations,  by  which  I  or  any  other  in- 
dividual may  or  ought  to  have  been  moved.  That  would  be  to  sup- 
pose, that  such  topics  can  in  any  way  affect  the  judicial  mind.  For 
these  imperfect  reasons  I  concur  with  the  rest  of  the  judges  in  offer- 
ing this  answ^er  to  your  Lordships'  first  question. 

With  respect  to  your  Lordships'  second  question,  the  objection  to 
such  child  being  entitled  must  arise  from  an  allowance  having  been 
made  for  the  time  of  g^station_at  the  end  of  the  executory  trusts.  It 
seems  to  be  settled,  that  an  estate  may  be  limited  in  the  first  instance 
to  a  child  unborn,  and,  I  apprehend,  to  the  first  and  other  sons  in  fee, 
as  purchasers.  The  case  of  Long  v.  Blackall,  3  Ves.  Jr.  486;  7  Term 
Rep.  100,  seems  to  have  decided,  that  an  infant  in  ventre  matris  is  a 
life  in  being.  The  established  length  of  time,  during  which  the  vesting 
mav  be  suspended,  is  during  a  life  or  lives  in  being,  the  period  of 
gestation,  and  the  infancy  of  such  posthumous  child.  If  then  this 
time  has  been  allowed  in  some  cases  at  the  beginning,  and  in  others 
at  the  termination,  of  the  suspension,  and  if  such  children  are  consid- 
ered by  the  construction  of  the  Statute  of  10  &  11  W.  Ill,  c.  16,  as 
being  born  to  such  purposes,  w^hat  should  prevent  the  period  of  gesta- 
tion  being  allowed  both  at  the  commencement  and  termination  of  the 
suspensionj_jOE^hoiiIO)eIialIIOQILL  In  tliose  cases,  wherFlTTTas" 
been  allowed  at  the  commencement  and  particularly  in  Long  v.  Black- 
all,  it  must  have  been  obvious  to  the  court,  that  it  might  be  wanting 
at  the  termination:  yet  that  was  never  made  an  objection.  In  Gulli- 
ver V.  Wickett,  1  Wils.  105,  the  child,  who  was  supposed  to  be  en 
ventre  sa  mere,  might  have  married  and  died  before  twenty-one,  and 
have  left  his  wife  enceinte.  In  that  case  a  double  allowance  would  have 
been  required :  yet  that  possibility  w'as  never  made  an  objection ;  al- 
though it  was  obvious.  In  Long  v.  Blackall,  according  to  the  printed 
report,  the  precise  point  w^as  not  gone  into.  But  it  is  plain,  that  the 
intention  of  the  court  must  have  been  drawn  to  it ;  for  the  learned 
judge, ^  who  argued  that  case  in  support  of  the  devise,  expressly  stat- 
ed, that  every  common  case  of  a  limitation  over,  after  a  devise  for  a 
life  in  being,  with  remainder  in  trust  to  his  unborn  issue,  includes  the 
same  contingency  as  was  then  in  question ;  for  the  devisee  for  life 
may  die  leaving  his  wife  enceinte :  and  the  only  difference  is,  that  the 
period  of  gestation  occurs  at  the  beginning  instead  of  the  end  of  the 
first  legal  estate.  It  must  have  been  palpable,  that  it  might  possibly 
occur  at  both  ends.  Every  reason  then  for  allowing  the  period  of 
gestation  in  the  one  case,  seems  to  apply  with  equal  force  to  the  oth- 
er; and  leads  the  mind  to  this  conclusion,  that  it  ought  to  be  allowed 
in  both  cases,  or  in  neither  case.  But  natural  justice,  in  several  cases, 
having  considered  children  en  ventre  sa  mere  as  living  at  the  death  of 
the  father,  it  should  seem,  that  no  distinction  can  properly  be  made; 

6  Mr.  Justice  Chambre,  then  at  the  bar. 


426  RULE  AGAINST  PERrETuiTiES  (Part  4 

but  that  in  the  singular  event  of  both  periods  being  required  they 
should  be  allowed ;   as  there  can  be  no  tendency  to  a  perpetuity. 
JliiEjLoRD^CHANCgLLORjXoRD  Eldon].    The  learned  judges  hav- 


ing given  their  opinion  upon  tHe^^oi'irfs  of  law,  referred  to  them,  no 
question  remains,  to  which  the  attention  of  the  House  should  be  par- 
ticularly called,  except  the  point,  arising  out  of  this  will,  and  which 
could  not  be  referred  to  the  judges ;  with  regard  to  the  accumulation 
of  the  rents  and  profits.  When  this  cause  was  decided  hi  the  Courtof 
Chancery,  it  w^as  decided  by  Lord  Rosslyn,  with  the  assistance  of 
Lord  Alvanley,  Mr.  Justice  Buller,  and  Mr.  Justice  Lawrence ;  and 
it  is  well  known,  that  the  late  Chief  Justice  [Lord  Kenyon]  of  the 
Court  of  King's  Bench  could  hardly  be  brought  to  think  any  of  the 
questions  in  this  case  fit  for  argument ;  conceiving  it  dangerous  to 
give  so  much  of  serious  agitation  to  them,  as  has  been  had ;  consider- 
ing what  had  been  settled  with  respect  to  executory  devise  and  ac- 
cumulation. Some  of  your  Lordships  have  had  the  advantage  of 
hearing  the  opinion  of  Lord  Thurlow ;  which  cannot  be  doubted  upon 
this  point ;  after  his  Lordship  has  laid  down,  in  Robinson  v..  Hard- 
c'astle,  2  Bro.  C.  C.  22  (see  page  30),  what  is  unquestionaMe  law,  that 
it  is  competent  to_a  testatorjbo  givea  life-estate,  to  be  appointed  by 
the  survivor  of  1000  persons.  ThaFestate'wouT3T)^e  to~comiTience  at 
the  death  of  the  last  of  those  1000  persons.  Upon  the  questions  of 
law  your  Lordships  have  had  the  unanimous  opinion  of  the  several 
learned  judges.  As  far  as  judicial  opinion  can  be  collected,  there  is, 
therefore,  the  testimony  of  all  the  judicial  opinion  I  have  detailed, 
concurrent  upon  this  great  case :  great,  with  reference,  not  to  the 
questions  arising  out  of  it,  but  to  that  circumstance,  of  which,  what- 
ever attention  your  Lordships  may  think  proper  to  give  it  in  your 
legislative  capacity,  you  cannot,  exercising  the  function  of  judges, 
take  notice ;  for  the  question  of  law  is  the  same  upon  a  property  of 
£100  or  a  million.  If  it  were  possible,  speaking  judicially,  to  say,  you 
entertain  a  wish  upon  the  subject,  your  Lordships  may  all  concur  in 
the  regret,  that  such  a  will  should  be  maintained.  But  that  goes  no 
farther  than  as  a  motive  to  see,  whether  it  contains  anything,  resting 
upon  which  we  may  as  judges  say  it  is  an  attempt  to  make  an  illegal 
disposition. 

When  this  was  put  originally  as  a  case,  representing,  that  it  was 
monstrous  to  tie  up  property  for  nine  lives,  it  seemed  to  me  a  propo- 
sition, that  is  incapable  of  argument  as  lawyers ;  for  the  length  of 
time  must  depend,  not  upon  the  number,  but  upon  the  nature  of  the 
lives.  If  we  are  to  argue  upon  probability,  two  lives  may  be  selected, 
affording  much  more  probability  of  accumulation  and  postponement 
of  the  time  of  vesting,  than  nine  or  ninety-nine  lives.  Look  at  the 
obituary^oLtMs-lIouse  since  the  year  1796;  when  this  wTTTwas  made. 
Suppose,  the  testator  had  taken  tTie^hves  of  so"  many  of  the  peers  as 
have  died  since  that  time :   that  would  have  been  between  twenty  and 


Ch.  1)  THE   RULE   AND   ITS   COROLLARIES  427 

thirty  lives ;  and  yet  that  number  lias  expired  in  a  very  short  period. 
It  cannot  therefore  depend  upon  the  magnitude  of  the  property,  or  the 
numBer  of  lives j^but  the  question  always^  is^  ^'l^Ul^i"  there  is  a  rule 
of  lawT^Txing  a  period,  during  which  property  may  be  unalienable. 
The  language  ^f  all  the  cases  is,  that  property  may  be  "so'ITmited'^s 
to  make  it  unalienable  during  any  number  of  lives,  not  exceeding 
that,  to  which  testimony  can  be  applied,  to  determine,  when  the  sur- 
vivor of  them  drops. 

If  the  law  is  so  as  to  postponing  alienation,  another  question  arises 
out  of  this  will ;  which  is  a  pure  question  of  equity :  whether  a  tes- 
tator can  direct  the  rents  aiKT^oTrt s~to~l3e  accumula tecT  for  that  penocl, 
during  whicirhFrnay  direct,  that  the  title  shall  iiot  vest,  and^e  prop- 
erty slTatt'raimln "unalienable j  ^HH^TlTanie"  catTdo  so,  is  most  clear 
law"^  A  fanTiliar  ca¥e  may  be  put"  If  this  testator  had  given  the 
resiHue  of  his  personal  estate  to  such  persoiT^as" should  be  tlie^eM^st 
male  descendant  of  Peter  isaa^ThellussonTaFtlie  death  of  tlie  survivor 
o f  all  the  lives,  mentioned  in  this~will7  wTtHout  rnore^  that  simpIe~Be- 
quesT  would  in  efi'ect  have  directecTaccumulation,  uirtil  it^hould~be 
seen,  what  individual  would  answer  the  description  of  tliat  male  de- 
scemJaiit ;  and  1jre~efifect  oJ_tlie  or^iary  rule  of  Taw7~as~apTTtTed- in 
equity,  woiild_have  supplied  everything,  thaF  is  contained  in  this  wlTl, 
as~to  accumulation ;  ToFlhe  first  question  would  be,  is  the  executory 
devise  ot  the  personal  estate  to  the  future  individual,  so  described, 
good?  If  it  is,  wherever  a  residue  of  personal  estate  is  given,  the  in- 
terest goes  with  the  bulk;  and  there  is  no  more  objection  to  giving 
that  person,  that,  which  is  only  forming  another  capital,  than  to  giv- 
ing the  capital  itself.  But  the  constant  course  of  a  court  of  equitv  is 
to  accumulate  interest  from  time~To~time  "without  a  djrecTion^^gnS'  to 
haiid  over  the'  accumulation  to  that  person,  whois  to  take  the  capital? 
Ta^e~anbther  instance  uf  accurrratalion :  suppose,  ^e  nine  persons, 
named  in  this  will,  had  been  lunatics:  without  any  direction  there 
would  have  been  an  accumulation  of  the  interest  and  profits  of  all 
these  estates.  In  truth  there  is  no  objection  to  accumulation  upon  the 
policy  of  the  law,  applying  to  perpetuities;  for  the  rents  and  profits 
are  not  to  be  locked  up,  and  made  no  use  of,  for  the  individuals,  or 
the  public.  The  effect  is  only  to  invest  them  from  time  to  time  in  land  : 
so  that  the  fund  is,  not  only  in  a  constant  course  of  accumulation,  but 
also  in  a  constant  course  of  circulation.  To  that  application  what  pos- 
sible objection  can  there  be  in  law? 

But  this  is  not  new ;  for  in  the  case  upon  Lady  Denison's  will  " 
Lord  Kenyon,  who  saw  great  danger  in  permitting  argument  to  go 
too  far  against  settled  rules,  held  most  clearly,  that  the  testatrix  had 
well  given  her  property  to  such  second  son  of  her  infant  niece  as 
should  first  attain  the  age  of  twenty-one;    and  directed  accumulation 

6  Harrison  v.  Harrison,  21st  July,  17S6,.  stated  from  the  Register's  Book,  4 
Ves.  338. — Rep.     ■ 


428  RULE  AGAINST  PERPETriTiES  (Part  4 

through  the  whole  of  that  period ;  following  Lord  Hardwlcke  and 
his  predecessors ;  and  taking  the  rule  to  be  perfectly  clear,  that,  so 
long  as  the  property  may  be  rendered  unalienable,  so  long  there  may 
be  accumulation ;  that  in  common  sense  it  is  only  giving  the  ac- 
cumulation to  the  person,  who  is  to  take  the  fund  itself ;  if  it  could 
be  foreseen,  who  that  person  would  be.  Therefore,  as  to  giving  the 
property  at  the  expiration  of  nine  lives  and  the  accumulation,  I  never 
could  doubt  upon  these  points.  The  latter  could  not  be  a  subject  of 
dispute  before  the  late  Act  of  Parliament  (Stat.  39  &  40  Geo.  Ill,  c. 
93) ;  jvliich  has  been  sometmies^lioiL{gH~wttliout  f oundaTTon,  attributed 
to  me;  and  which  m^some Teipects  I  wmjTd  have  correctecT,  if  it  had 
not  come  upon  me  rather  by  surprise.  That  Act  however  expressly 
alters  what  it  takes  to  have  been  the  former  law  upon  the  subject; 
admitting  the  right  to  direct  accumulation ;  and  reducing  that  right  in 
given  cases  to  the  period  of  twenty-one  years.  The  amount  of  ac- 
cumulation, even  through  the  provisions  of  that  Act,  though  only  to 
endure  for  twenty-one  years,  might  in  many  instances,  by  giving  the 
son  a  scanty  allowance,  be  enormous.  I  do  not  think,  it  was  intended : 
but  the  accumulation  directed  by  this  will  must  under  that  Act  have 
gone  on  for  twenty-one  years.  In  the  construction  of  that  Act  it  has 
been  held,  that  it  only  makes  void  so  much  of  the  disposition  as  exceeds 
twenty-one  years ;  leaving  it  good  for  that  period.  Upon  the  old  rule 
also  accumulation  for  particular  purposes  might  have  gone  on  for  nine 
lives,  or  more. 

The  only  points,  that  appear  to  me  fairly  to  bear  argument,  are  the 
critical  discussion  upon  the  word  "as,"  as  a  relative  term,  and  that 
with  reference  to  the  double  period  of  gestation.  As  to  the  former,  if 
your  Lordships  could  from  dislike  to  such  a  will  refuse  that  construc- 
tion, which  will  consider  that  word  as  a  word  of  reference  to  each 
preceding  description  of  persons,  grounding  that  construction  upon  the 
manifest  intention  of  the  testator  upon  the  whole  will  to  make  the 
property  unalienable,  as  long  as  he  could,  you  would  gratify  that  in- 
clination at  the  expense  of  overturning  all  the  rules  of  construction, 
that  have  been  settled,  and  applied  for  ages  to  support  wills.  If  your 
Lordships  will  give  any  relief  by  legislative  interference  against  this 
will,  that,  is  a  very  bold  proposition ;  but  not  so  bold  as,  that,  because 
you  dislike  the  effect  of  the  will,  you  will  give  a  judgment  wrong  in 
point  of  law. 

As  to  the  other  point,  upon  the  words  "born  in  due  time  afterwards," 
I  observe  in  the  report,  the  Judges  Lawrence  and  Duller  afford  each 
a  construction  of  these  words :  the  one,  that  they  mean  children  en 
ventre  sa  mere :  the  other  held  them  a  declaration  of  the  testator's 
will,  that  the  property  shall  be  unalienable,  and  the  accumulation  go 
on,  during  the  lives  of  all  the  persons,  born  or  unborn,  whom  the 
law  would  authorize  him  to  take  as  the  lives  for  restraint  of  alienation, 
and  for  the  purpose  of  accumulation.  In  my  opinion  either  of  those 
constructions  may  be  taken  to  be  the  intention  consistently  with  the 


Ch.  1)  THE   RULE   AND   ITS   COROLLARIES  429 

rules  of  law :  but  consistently  with  the  rules  of  law  your  Lordships 
cannot  reject  both;  but  must  give  the  words  such  a  construction  as 
will  support  the  manifest  intention  of  the  testator.  It  is  therefore  be- 
side the  point  to  ask,  what  child  shall  take,  or,  when  a  child  shall 
take;  for  the  testator  is  describing,  not  the  object  to  take,  but  the 
lives  of  persons ;  in  order  to  define  the  period,  during  which  the  pow- 
er of  alienation  shall  not  exist,  and  the  accumulation  shall  go  on.  But, 
if  it  is  necessary,  I  have  no  difficulty  in  stating,  as  a  lawyer,  that  the  rule 
of  law  has  been  properly  laid  down,  that  the  time  of  jge^tatipn  may  be 
taken  both  at  the  beginning  a.nd  the  end ;  and  that  is  what  was  meant 
in  Gulliver  v.  Wickett,  1  Wils.  105,  in  which  case  the  devise  was  to  a 
child  en  ventre  sa  mere;  and  to  go  over,  if  that  child  should  die  un- 
der the  age  of  twenty-one,  leaving  no  issue.  In  the  construction  of 
that  limitation,  expressly  to  a  child  en  ventre  sa  mere,  suppose  that 
child  had  at  the  age  of  twenty  married,  and  died  six  months  after- 
wards leaving  his  wife  enceinte :  that  property,  absolutely  given  to 
him,  would  not  be  devested,  merely  because  the  child  was  not  born 
till  three  months  after  his  death.  In  fair  reasoning  therefore  that  is 
the  construction  of  the  words. 

Of  the  case  of  Long  v.  Blackall,  3  Ves.  486;  7  Term  Rep.  100,  in 
which  I  was  counsel,  I  can  give  a  faithful  history.  It  was  my  duty  to 
submit  to  the  Lord  Chancellor  the  point,  that  the  allowance  was 
claimed  at  both  ends  of  the  period.  His  Lordship  treated  the  point 
not  with  much  respect :  but  I  prevailed  with  him  against  his  inclina- 
tion to  send  it  to  the  Court  of  King's  Bench.  Upon  the  report  of  the 
case  in  that  court  the  point  did  not  appear  to  have  been  discussed.  I 
therefore  pressed  the  Lord  Chancellor  to  send  the  case  back.  His 
answer  was  as  rough,  as  his  nature,  which  was  very  gentle,  would 
permit :  and  shows  the  clear  opinion  he  had  upon  the  point.  He  said 
distinctly,  he  was  ashamed  of  having  once  sent  it  to  a  court  of  law; 
and  v/ould  not  send  it  there  again.  I  know.  Lord  Kenyon's  opinion 
upon  the  subject  was  clear:  so  were  those  of  Mr.  Justice  Buller  and 
Mr.  Justice  Lawrence;  as  may  be  collected  from  the  report  of  these 
causes.  (4  Ves.  314,  315,  321.)  This  case  therefore  comes  to  this, 
and  this  only.  The  legal  and  equitable  doctrine  is  clear ;  and  then  the 
question  is,  with  whatever  regret  we  may  come  to  the  determination, 
is  it  not  our  duty  to  determine  according  to  the  rules  of  law  and  equi- 
ty? Upon  the  question,  whether  this  judgment  ought  to  be  reversed, 
I  am  bound  to  say,  it  ought  not ;   but  that  it  ought  to  be  affirmed. 

Upon  the  motion  of  the  Lord  Chancellor  the  decree  was  affirmed.^ 

1  See  Pownall  v.  Graham,  33  Beav.  242  (1S63) ;  In  re  Moore,  [1901]  1  Ch.  936. 
On  the  Thellusson  Actj  see  Gray's  Rule  Against  Perpetuities  (2d  and  3d 
Editions)  fGS(J  to  §  727. 


430  EULE   AGAINST   PERPETUITIES  (Part  4 

CADELL  V.  PALMER. 
(House  of  Lords,  1S33.     1  Clark  &  F.  372.) 

Henry  Bengough,  Esq.,  by  his  will,  dated  the  9th  of  April,  1818, 
gave  and  devised,  from  and  after  the  decease  of  his  wife,  Joanna  Ben- 
gough, his  messuage  with  the  gardens,  stables,  and  other  appurte- 
nances belonging  thereto,  situate  in  St.  James's  Square,  Bristol,  to 
the  Rev.  Charles  Lucas  Edridge,  Arthur  Palmer,  the  Rev.  Cadell 
Edridge,  and  George  Wright,  their  heirs  and  assigns  forever,  upon 
trust,  for  sale;  and  directed  the  proceeds  to  sink  into  and  become 
part  of  his  personal  estate.  He  further  gave  and  devised  to  the  said 
trustees,  their  heirs  and  assigns,  certain  other  real  estates,  upon  trust, 
to  permit  his  wife  to  occupy  a  part  thereof  during  her  life,  and,  after 
her  decease,  to  pay  out  of  the  rents  and  profits  an  annuity  of  £300  to 
his  nephew,  George  Bengough,  for  life,  and  an  annuity  of  i200  to  his 
nephew,  Henry  Bengough,  for  life ;  and  subject  to  the  payment  of  the 
said  annuities,  and  otherwise  subject,  as  in  the  said  will  mentioned, 
upon  trust,  from  time  to  time,  during  the  term  of  twenty-one  years, 
to  be  computed  from  the  day  of  the  testator's  decease,  to  collect  and 
receive  the  rents  and  profits  of  all  his  real  estates  so  devised  to  them 
(except  the  house  in  St.  James's  Square) ;  and  from  time  to  time  dur- 
ing the  continuance  of  the  said  term  to  lay  out  the  moneys  to  arise 
from  such  rents  and  profits  in  the  purchase  of  freehold  estates  of  in- 
heritance in  England,  when  and  as  often  as  there  should  be  a  surplus 
in  hand  amounting  to  the  sum  of  ilSOO.  And  he  directed  the  estates 
so  to  be  purchased  to  be  conveyed  to  the  trustees,  upon  the  same 
trusts  and  conditions  as  Avere  thereinafter  *  limited  concerning  his 
estates  thereinbefore  devised;  and  that  the  trustees  should  not  per- 
mit more  than  £.S00  to  remain  in  bankers'  hands,  but  should  invest  the 
same  in  the  three  per  cent,  consolidated  bank  annuities  until  a  con- 
venient purchase  could  be  found,  and  add  the  interest  to  the  princi- 
pal, to  accumulate  during  the  said  term  in  the  same  manner  as  the 
rents  and  profits  of  the  real  estate  were  before  directed  to  accumu- 
late ;  and  as  to  all  the  said  trust  estates  and  hereditaments  so  by  him 
thereby  devised  (except  his  said  messuage  in  St.  James's  Square),  up- 
on trust,  that  the  trustees  for  the  time  being  should  retain  and  stand 
possessed  of  the  same  during  the  term  of  one  hundred  and  twenty 
years,  to  commence  from  his  death,  if  his  said  nephews,  George  Ben- 
gough and  Henry  Bengough,  his  nephew,  James  Bengough,  his  great 
nephews,  Henry  Ricketts  the  younger,  and  Richard  Ricketts  the 
younger,  his  niece,  Ann  Elizabeth  Bengough,  his  great  niece,  Ann 
Ricketts  the  younger,  the  ten  children  then  living  of  the  said  Charles 
Lucas  Edridge  (for  whose  names  a  blank  was  left  in  the  will),  and  the 

8  See  the  report  of  this  case  under  the  title  of  Bengough  v.  Edridge,  1 
Sim.  273,  where  the  Vice-C.'hanoellor  ordered  "hereinbefore"  to  be  suosLituted 
for  "hereinafter,"    That  part  of  the  decree  is  not  appealed  from. — lici). 


Ch.  1)  THE   RULE   AND   ITS   COROLLARIES  431 

eleven  children  then  living  of  the  said  Arthur  Palmer  (whose  names 
were  mentioned),  or  any  or  either  of  his  said  nephews  and  niece,  and 
great  nephews  and  great  niece,  or  any  or  either  of  the  said  several 
children  of  the  said  Charles  Lucas  Edridge  and  Arthur  Palmer, 
should  so  long  live;  and  also  during  the  term  of  twenty  years,  to  be 
computed  from  the  expiration  or  other  sooner  determination  of  the 
said  term  of  one  hundred  and  twenty  years  determinable  as  aforesaid, 
nevertheless  upon  trust  for  his  said  nephew,  George  Bengough,  for  a 
term  of  ninety-nine  years,  if  he  should  so  long  live,  and  the  said 
terms  of  one  hundred  and  twenty  years  and  twenty  years,  or  either  of 
them,  should  so  long  continue ;  and  from  and  after  the  expiration  or 
other  sooner  determination  of  the  said  term  of  ninety-nine  years,  then 
in  trust  for  the  first,  second,  third,  fourth,  fifth,  sixth,  and  all  and 
every  other  and  subsequent  born  son  of  the  same  George  Bengough, 
severally  and  successively,  according  to  the  priority  of  their  births : 
and  after  the  determination  of  the  estate  and  interest  of  each  of  the 
same  sons  respectively,  and  also,  as  the  circumstances  of  the  case 
should  require,  after  the  determination  of  the  estate  of  any  person 
taking  from  time  to  time  under,  or  as  answering  the  description  of 
heir  male  of  his  body,  in  trust  for  the  person  who  for  the  time  being 
and  from  time  to  time  should  answer  the  description  of  .heir  male  of 
his  body,  or  who,  in  case  of  the  death  of  his  parent,  if  such  death  had 
taken  place,  would  be  heir  male  of  his  body,  under  an  estate  tail  lim- 
ited to  the  same  son  and  the  heirs  male  of  his  body,  to  hold  to  the 
same  son  or  person  respectively  for  a  term  of  ninety-nine  years,  if 
the  same  son  or  person  respectively  should  so  long  live ;  and  the  said 
terms  of  one  lumdrcd  and  twenty  years  and  twenty  years,  or  either  of 
them,  should  so  long  continue,  every  elder  of  the  same  sons,  and  the 
person  who  for  the  time  being  and  from  time  to  time  should  answer, 
or  who,  in  case  of  the  death  of  his  parent,  if  such  death  had  taken 
place,  would  answer  the  description  of  heir  male  of  his  body,  to  be 
preferred  before  every  younger  of  the  same  sons,  and  the  person  who 
for  the  time  being  should  answer,  or  in  case  of  the  death  of  his  par- 
ent, if  such  death  had  taken  place,  would  answer  the  description  of 
heir  male  of  his  body. 

The  testator  then  declared  several  successive  trusts  of  the  said  es- 
tates during  the  said  terms  of  one  hundred  and  twenty  years  and 
twenty  years,  in  favor  of  his  nephews,  Henry  Bengough  and  James 
Bengough,  his  great  nephews,  Henry  Ricketts  the  younger,  and  Rich- 
ard Ricketts  the  younger,  his  niece,  Ann  Elizabeth  Bengough,  and  his 
great  niece,  Ann  Ricketts  the  younger,  respectively,  and  their  respec- 
tive first  and  other  subsequent  born  sons,  and  of  the  persons  who  for 
the  time  being  should  be,  or  who  in  case  of  the  death  of  their  re- 
spective parents  would  be  heirs  male  of  such  sons  respectively,  simi- 
lar to  the  trusts  before  stated  to, have  been  declared  in  favor  of  the 
said  George  Bengough,  and  his  first  and  other  subsequent  born  sons, 
and  of  the  person  who  for  the  time  being  should  be,  or  who  in  case  of 


432  RULE  AGAixsT  PERPETUITIES  (Part  4 

the  death  of  his  parent  would  be,  heir  male  of  the  body  of  each  of  the 
same  sons  respectively,  except  that  he  directed  that  the  estates  of  the 
said  Henry  Ricketts  and  Richard  Ricketts,  and  of  their  respective 
sons,  and  of  the  person  or  persons  answering  the  description  of  heirs 
male  or  heir  male  of  their  respective  bodies ;  and  also  the  estates  of 
the  said  Ann  Elizabeth  Bengough  and  Ann  Ricketts,  and  of  their  re- 
spective husbands,  and  of  their  first  and  other  sons,  and  of  the  per- 
sons answering  the  description  of  heirs  male  of  their  respective  bodies, 
should  respectively  cease,  if  he  or  they  for  the  time  being  should  re- 
fuse to  take  the  surname  and  bear  the  arms  of  Bengough  only,  after 
he  or  they  respectively  should  become  entitled  to  the  receipt  of  the  in- 
come of  the  said  trust  estates.  And  from  and  after  the  determination 
of  the  said  respective  estates  and  interests,  then  in  trust  for  the  per- 
son or  persons  respectively  who  for  the  time  being  and  from  time  to 
time  should  answer  the  description  of  the  testator's  heir  or  right 
heirs-at-law ;  and  if  there  should  be  more  than  one,  in  the  same  pro- 
portions, as  they  would  be  entitled  to  a  real  estate  descending  from 
the  testator  as  the  first  purchaser,  and  vesting  in  him  or  them  as  his 
right  heirs  to  hold  to  the  same  person  or  persons  respectively,  if  more 
than  one,  as  tenants  in  common,  as  to  each  of  the  same  persons  re- 
spectively, for  a  term  of  ninety-nine  years,  if  the  same  person  should 
so  long  live,  and  the  said  terms  of  one  hundred  and  twenty  years  and 
twenty  years,  or  either  of  them,  should  so  long  continue. 

The  testator  further  directed  that  each  of  the  said  terms  of  ninety- 
nine  years  should  be  computed  from  the  time  when  the  person  or  per- 
sons respectively  to  whom  the  same  were  limited  should  become  enti- 
tled to  the  income  of  all  or  any  part  of  the  said  trust  estates,  under 
the  limitations  thereinbefore  contained ;  and  that  in  case  the  said  limi- 
tations in  favor  of  persons  unborn  could  not  take  effect  precisely  in 
the  order  in  which  they  were  directed,  and  there  should  consequently 
be  any  suspension  of  the  beneficial  ownership,  by  reason  that  the  per- 
sons entitled  to  take  under  the  same  limitations  or  trusts  should  not 
be  then  born,  in  that  case  the  income  of  his  said  devised  trust  estates 
should,  during  such  suspension  of  ownership,  belong  to  and  be  en- 
joyed by  the  person  or  persons  for  the  time  being  entitled,  or  who,  in 
case  there  had  not  been  such  suspension  of  ownership,  would  for  the 
time  being  have  been  entitled  to  the  next  estate  in  remainder,  subject 
nevertheless  to  the  right  of  any  person  or  persons  to  be  afterwards 
born,  and  who  would  have  been  entitled,  under  any  prior  Hmitation, 
to  receive  the  income  of  his  said  trust  estates  from  his,  her,  or  their 
actual  birth,  or  respective  births. 

The  testator  then  directed,  that  after  the  expiration  or  sooner  de- 
termination of  the  said  terms  of  one  hundred  and  twenty  years  and 
twenty  years,  his  said  trust  estates  should  be  conveyed  and  assured 
by  his  then  trustee  or  trustees  thereof  to  such  person  or  persons  as 
would  at  that  time  be  entitled  to  the  same,  either  by  purchase  or  by 
descent,  for  the  first  or  immediate  estate  or  estates  for  Hfe,  in  tail,  or 


Ch.  1)  THE    RULE   AND   ITS   COROLLARIES  433 

in  fee  in  them,  if  the  same  had  by  his  will  been  devised,  settled,  or  as- 
sured to  the  use  of  his  nephew,  the  said  George  Bengough,  and  his 
assigns  for  his  life,  with  remainder  to  his  first  and  other  sons  succes- 
sively, according  to  the  priority  of  their  births  in  tail  male,  with  re- 
mainder in  similar  estates  for  life,  and  remainders  in  succession  to  the 
said  Henry  Bengough,  James  Bengough,  Henry  Ricketts,  Richard  Rick- 
etts,  Ann  Elizabeth  Bengough,  Ann  Ricketts,  and  their  sons  respective- 
ly, with  a  proviso  for  the  cesser  of  the  estates  of  the  said  Henry  Ricketts 
and  Richard  Ricketts,  and  their  respective  first  and  other  sons,  and  the 
heirs  male  of  their  respective  bodies,  who  for  the  time  being  should  re- 
fuse to  take  the  surname  and  bear  the  arms  of  Bengough  only,  after  he 
or  they  respectively  should  become  entitled  to  the  receipt  of  the  said  in- 
come ;  and  also  for  the  cesser  of  the  estate  of  the  said  Ann  Elizabeth 
Bengough  and  Ann  Ricketts,  and  their  respective  husbands,  and  their 
first  and  other  sons,  and  the  heirs  male  of  their  respective  bodies,  who 
for  the  time  being  should  make  a  like  refusal  with  reversion  to  the 
testator's  own  right  heirs.  And  he  further  directed,  that  the  person 
or  persons  to  whom  such  conveyances  should  be  made,  should  have 
such  estate  in  the  said  trust  estates  as  he  or  they  would  at  that  time 
be  entitled  to  take  under  the  said  limitations,  if  the  same  had  been 
actually  made  by  his  will,  with  the  same  or  the  like  remainders  over 
as  if  the  said  trust  estates  had  been  devised  by  his  will  in  manner 
aforesaid,  or  as  near  thereto  as  might  be,  and  the  circumstances  of 
the  case  and  the  rules  of  law  and  equity  would  permit;  yet,  neverthe- 
less, that  no  such  person  should  have  or  be  entitled  to  a  vested  estate 
or  any  other  than  a  contingent  interest  until  the  expiration  or  sooner 
determination  of  the  terms  of  one  hundred  and  twenty  years  and 
twenty  years ;  and  he  declared  that  such  limitations  were  introduced 
into  his  will  only  for  the  purpose  of  ascertaining  the  objects  to  whom 
such  conveyances  should  be  made,  and  not  for  the  purpose  of  making 
any  immediate  devise  or  gift  to,  or  raising  any  immediate  or  present 
estate  by  way  of  trust  or  otherwise  for  them ;  on  the  contrary  thereof, 
he  directed  that  during  the  said  terms  of  one  hundred  and  twenty 
years  and  twenty  years,  no  person  or  persons  should  be  entitled,  at 
law  or  in  equity,  to  any  beneficial  estate  in  his  said  trust  estates,  or 
the  income  thereof,  by  way  of  vested  interest,  for  any  longer  period 
than  ninety-nine  years,  determinable  as  before  mentioned,  and  that, 
in  the  events  and  in  the  mode  before  expressed,  heirs  or  heirs  of  the 
body  should  be  entitled  to  take  in  the  first  instance,  and  as  purchasers 
in  their  own  right.  And  he  directed,  that  if  at  any  time  during  the 
said  terms  of  one  hundred  and  twenty  years  and  twenty  years,  each 
of  the  male  persons  who  for  the  time  being  should  be  entitled  to  the 
income  of  his  said  trust  estates  should  require  the  same,  it  should  be 
lawful  for  his  trustees  to  convey  to  each  or  any  person  making  such 
request  the  said  trust  estates,  or  part  thereof,  as  he  should  be  entitled 
to  under  the  limitations  thereinbefore  contained,  for  an  estate  of  free- 
4  Kales  Pbop.— 28 


434  RULE  AGAINST  PERPETUITIES  (Part  4 

hold  for  the  life  of  the  same  person,  so  as  to  give  him  or  her  an  es- 
tate of  freehold  instead  of  an  estate  for  ninety-nine  years. 

The  testator,  after  giving  various  other  directions  and  powers  con- 
cerning the  said  trust  estates,  and  after  bequeathing  several  legacies 
and  annuities,  gave  and  bequeathed  to  the  said  trustees,  their  execu- 
tors and  administrators,  all  the  residue  of  his  personal  estate  whatso- 
ever, upon  trust,  that  they  should  either  continue  his  moneys  upon  the 
securities  upon  which  they  should  be  invested  at  his  decease,  or  call  in 
the  same,  and  sell  all  such  parts  of  his  residuary  estate  and  effects  as 
should  not  consist  of  money,  or  securities  for  money.  And  he  direct- 
ed that,  during  the  term  of  twenty-one  years,  to  be  computed  from  the 
day  of  his  decease,  the  trustees  for  the  time  being  of  his  will  should 
receive  the  dividends,  interest,  and  annual  income  of  all  his  residuary 
estate,  and  from  time  to  time  during  such  term  invest  all  such  divi- 
dends, interest,  and  income,  and  the  accumulations  of  the  same^  in 
their  names,  either  in  the  three  per  cent,  consolidated  bank  annuities, 
or  upon  mortgages  of  freehold  hereditaments  in  Great  Britain,  as 
they  should  think  proper,  as  an  accumulating  fund,  in  order  to  in- 
crease the  principal  of  his  residuary  estate  during  such  term  of  twen- 
ty-one years ;  and  should,  with  all  convenient  speed,  from  time  to  time 
during  that  term,  lay  out  and  invest  all  his  residuary  estate  and  ef- 
fects, and  all  accumulations  thereof,  in  purchases  of  freehold  heredit- 
aments of  an  estate  of  inheritance  in  fee-simple,  in  England  or  Wales, 
when  eligible  purchases  should  arise ;  which  estates,  so  to  be  pur- 
chased, should  be  conveyed  unto  and  to  the  use  of  the  trustees,  in  fee, 
upon  the  same  trusts,  and  under  and  subject  to  the  same  and  the  like 
powers,  provisos,  and  limitations  as  were  by  him  thereinbefore  de- 
clared, concerning  his  said  estates  devised  to  them  in  trust  as  therein- 
before mentioned,  or  as  near  thereto  as  the  death  of  parties,  the 
change  of  interests,  and  other  contingencies  w^ould  admit ;  and  he  ap- 
pointed his  said  trustees  to  be  executors  of  his  said  will. 

The  testator  died  in  April,  1818,  and  his  three  first-named  trustees 
and  executors  shortly  afterwards  proved  his  will,  and  became  his  le- 
gal personal  representatives,  George  Wright  having  renounced  pro- 
bate, and  executed  a  deed  of  disclaimer  to  them  as  to  the  trust  estates. 

Ann  Ricketts,  the  testator's  only  sister,  and  next  of  kin  at  the  time 
of  his  death,  died  in  the  month  of  October,  1819,  having  by  her  will 
appointed  the  respondents,  W.  P.  Lunell,  J.  E.  Lunell,  and  George 
Lunell  executors  thereof ;  and  they  proved  the  same,  and  became  her 
legal  personal  representatives. 

Mrs.  Bengough,  the  testator's  widow,  died  on  the  10th  of  June, 
1821,  having  duly  made  and  published  her  will,  and  appointed  as  ex- 
ecutors thereof  the  said  Rev.  Cliarles  Lucas  Edridge  (since  deceased), 
and  Thomas  Cadell,  the  appellant,  who  duly  proved  the  same,  and 
thereby  became  her  legal  personal  representatives. 

George  Bengough,  the  testator's  nephew,  and  first  taker  of  an  es- 
tate under  the  limitations  in  the  will,  filed  his  bill  in  Chancery  in  the 


Ch.  1)  THE   RULE   AND   ITS   COROLLARIES  435 

year  1821  (amended  in  ]S23)  against  the  acting  trustees  and  execu- 
tors, and  against  the  said  Henry  and  James  Bengough,  Henry  and 
Richard  Ricketts,  Ann  Bengough,  and  Ann  Ricketts,  the  younger,  and 
also  against  the  said  personal  representatives  of  Joanna  Bengough, 
the  widow,  and  of  Ann  Ricketts,  the  sister,  of  the  testator;  and  after 
stating  the  said  will  and  his  own  rights  under  it,  and  as  heir-at-law 
and  one  of  the  then  next  of  kin  of  the  testator,  he  prayed  (amongst 
other  things)  that  the  will  might  be  declared  to  be  well  proved,  and 
that  the  trusts  thereof,  so  far  as  the  same  were  good  in  law,  might  be 
decreed  to  be  carried  into  execution,  and  that  an  account  might  be 
taken  of  the  personal  estate  and  effects  of  the  testator,  and  of  his 
funeral  and  testamentary  expenses,  and  debts  and  legacies ;  and  that 
the  clear  residue  of  the  personal  estate  might  be  applied  upon  the 
trusts  of  the  will,  so  far  as  the  same  were  effectual  in  law;  and  as  far 
as  the  same  were  ineffectual  in  law,  then  to  such  person  or  persons  as 
would,  in  such  case,  by  law  be  entitled  thereto :  and  that  an  account 
might  be  taken  of  the  testator's  real  estate,  and  of  the  rents  received 
by  the  trustees ;  and  that  what  should  be  found  due  from  them  on 
taking  that  account  might  be  applied  upon  the  trusts  of  the  will,  as 
far  as  the  same  were  good  in  law ;  and  that  the  court  would  be  pleas- 
ed to  declare  how  far  the  trusts  of  the  real  and  personal  estate  were 
good ;  and  as  far  as  the  trusts  were  declared  to  be  void,  that  the  plain- 
tiff might  be  declared  to  be  entitled  to  the  real  estate ;  but,  in  case  the 
trusts  of  the  will  should  be  considered  valid,  then  that  such  of  the 
rents  and  profits  of  the  estates  devised  to  the  trustees  in  possession, 
as  accrued  during  the  life  of  Mrs.  Bengough,  might  be  applied  in  the 
purchase  of  freehold  estates  of  inheritance  in  England  or  Wales,  and 
that  the  annuities  of  the  plaintiff  and  Henry  Bengough  might  be  paid 
out  of  the  rents  and  profits  that  had  accrued,  and  should  accrue  after 
her  death ;  and  that  the  residue  thereof  might,  during  the  remainder 
of  the  term  of  twenty-one  years,  be  also  applied  in  the  purchase  of 
freehold  estates  of  inheritance  in  England  or  Wales ;  and  that  such  es- 
tates, when  purchased,  might  be  conveyed  to  the  trustees  upon  the 
trusts  declared  of  the  estates  so  to  be  purchased ;  and  that,  as  often 
as  there  should  be  the  sum  of  £1500  arising  from  the  rents  and  profits 
of  the  devised  estates,  it  might  be  laid  out  in  such  purchases  of  free- 
hold estates  as  aforesaid ;  and  that  the  plaintiff  might  be  declared  to 
be  entitled  to  the  immediate  possession  and  enjoyment  of  the  said  es- 
tates so  to  be  purchased,  for  the  term  of  ninety-nine  years,  if  the 
plaintiff  should  so  long  live,  such  term  to  be  computed  from  the  death 
of  the  testator;  and  that  in  case  the  said  rents  and  profits  should  not, 
as  soon  as  they  amounted  to  il500,  be  so  laid  out,  the  plaintiff  might 
be  declared  entitled  to  the  interest  and  dividends  thereof  from  the 
time  the  same  amounted  to  £1500,  until  the  same  should  be  laid  out 
in  the  purchase  of  freehold  estates ;  or  that,  in  case  the  said  trusts 
were  partly  valid  and  partly  invalid,  then  that  proper  directions  might 
be  given  for  effectuating  such  of  the  trusts  as  were  valid,  and  for  de- 


436  RULE  AGAINST  PERPETUITIES  (Part  4 

daring  and  effectuating  the  rights  of  the  persons  entitled,  so  far  as 
the  trusts  were  invaUd. 

The  defendants  having  put  in  their  answer  to  the  bill,  the  cause 
came  on  to  be  heard  before  the  Vice-Chancellor  in  1823,  when  an  or- 
der of  reference  was  made  to  the  master,  who,  in  pursuance  thereof, 
reported  that  the  plaintiff  was,  at  the  time  of  the  death  of  the  testa- 
tor, and  then  was,  the  heir-at-law  of  the  said  testator,  and  that  the 
said  Ann  Ricketts,  deceased,  the  sister  of  the  said  testator,  was  his 
only  next  of  kin  at  the  time  of  his  death,  and  that  William  P.  Lunell, 
J.  E.  Lunell,  and  George  Lunell,  were  then  her  legal  personal  repre- 
sentatives, and  the  only  persons,  who,  together  with  the  plaintiff,  and 
the  said  Henry  Bengough,  James  Bengough,  and  Ann  Elizabeth  Ben- 
gough  (the  children  of  the  said  testator's  late  brother,  George  Ben- 
gough), and  the  said  Charles  Lucas  Edridge,  and  the  appellant,  the 
executors  of  Joanna  Bengough,  the  widow  of  the  said  testator,  would 
in  case  of  intestacy  have  been  entitled  to  distributive  shares  of  the 
personal  estate  of  the  testator. 

Upon  the  death  of  James  Bengough,  the  suit  was  revived  against 
Sarah  Bengough,  his  widow  and  personal  representative ;  and  William 
Ignatius  Okely,  having  married  Ann  Elizabeth  Bengough,  was  subse- 
quently made  a  party  to  the  suit. 

The  cause  having  come  on  to  be  heard,  on  further  directions,  be- 
fore the  y^ce^^ChaiKiellor,  his  Honor,  by  a  decree,  bearing  date  the 
24th  day  of  January,  1827,  ordered  it  to  be  declared  (amongst  other 
things)  that  the  testator's  said  will  ought  to  be  established,  and  the 
trusts  thereof  carried  into  execution,  &c.  His  Honor,  in  giving  his 
judgment  in  respect  of  that  part  of  his  decree,  said,  "that  although  the 
rule  of  law  be  framed  by  analogy  to  the  case  of  a  strict  settlement, 
where  the  twenty-one  years  w"ere  allowed  m  respect  of  the  infancy  of 
a  teliannn  tait,"yet  he  considered  it  to  l3e  fully  settled^jthaLEmlEitions 
bv Way  ot  devise  or  springing  use  might  be  made  to  depend  upon  an 
absolute  term  61  twenty-one  years  after  lives  m  being.'" 

Frorn  this  part  of  the  decree  the  personal  representative  of  the  tes- 
tator's widow  appealed  to  the  House  of  Lords,  and  the  appeal  came  on 
for  hearing  in  February,  1832. 

The  learned  judges  who  attended  were  J.  A.  Park,  Littlisdali;, 
GaselEE,  Bosanquet,  AIvDERSon,  J.  Parke:,  and  Taunton,  JJ.  ;  Bay- 
LEY,  Vaughan,  Bolland,  and  Gurney,  BB.  ;  and  the  following  were 
the  questions  submitted  to  them  : 

First,  whether  a  limitation,  by  way  of  executory  devise,  is  void,  as 
too  remote,_pr  otherwise,  if  it  is  not  to  take  ettect  until  after  the  de- 
ter m  i  n  a  t  i  o  n  ^f_one^£  more  JjIe^prJiverTrrBe^^ 

tiolr"of~arterm  of  twenty-one  years  afterwards,  as  a  term  in  ^ross, 
and  without  reference  to  the  infancy  of  any  person  whois  to  take  un- 
der ^suchJimiUt  i  on^.QlLJ2i-am^ 

Secondly,  whether  a  Hmitation  by  way^of  executory  devise  is  void, 
as  too  remotefbr  otherwise7~tf^t  is  nbl  tu  Lake-cffeci  uirtil  ufteFTtre 


Ch.  1)  THE   RULE   AND   ITS   COROLLARIES  437 

determination  of  a  life  or  lives  in Jbehig,and_jipon  the  expiration  of  a 
termol  twenty-one^years  afterwards,  together  with  a  number  of 
months  eqijaTto  tli^ordirraiy'pefibd  of  gestation ;  but  the  whole  of 
such  yeais  and-^months^to-be-j^keTi  asa  ter^mjTn  gross7~a"nd  withmit 
reference  loThemfahcy  of  any~person  whatever^  born  or  en  venfre 
sa  mere. 

Thirdly,  whether  a  limitation  by  way  of  executory  devise  is  void, 
as  too  remote,  oFotlicfwIsg^  if  iF  is  not  to  take  effect  until  after  the 
determination  of  a  life  or  lives  in  being,  and  upon  the  expiration  of  a 
term  of  tvvenTy^one^ears^afterwards,  together  with  the  number  ~of 
months  equal  to  the  longest  period^f^gestajtion jjbut  the  whole  of 
such  years  ahdmbntTi?  to  be  taken  as  a  term  in  gross,  and  without 
refeTCTnre^"to~ttie  infancy  of  any  person  vvhatever,  l^orn  or  en  ventre 
sa  mere. 

The  learned  judges  attended  again  on  a  subsequent  day  (June  25th), 
and  Mr.  Baron  BaylEy  delivered  their  opinion  as  follows :  First,  in 
answer  to  the  firiFquestion :  I  am  to  return  to  your  lordships  the 
unanimous  opinion  of  the  judges  who  have  heard  the  argument  at 
your  Lordships'  bar,  that  such  a  limitation  is  not  too  remote,  or  oth- 
erwise void.  Upon  the  introduction  of  executor}rdevises7and  the  in- 
dulgence thereby  allowed  to  testators,  care  was  taken  that  the  proper- 
ty which  wasThe~subject  oITEem  should  jiot  be  tied  up  beyond  a 
reasonable^time,  and  that  too  great  a^restramt  iip_on  alienadon  should 
noFbe  perniitted7^TTie^ cases  oF^Lloyd  v.  Carew,  1  Show.  P.  C.  137,  in 
the  year  10^6,  and  Marks  v.  Maries;  10  Mod.  419,  in  the  year  1719,  es- 
tablished the  point,  that  for  certain  purposes,  such  time  as,  with  ref- 
erence to  those  purposes,  might  be  deemed  reasonable,  beyond  a  life 
or  lives  in  being,  might  be  allowed.  The  purpose,  in  each  of  those 
cases,  was,  to  give  a  third  person  an  option,  after  the  death  of  a  par- 
ticular tenant,  to  purchase  the  estate ;  and  twelve  months  in  the  first 
case,  and  three  months  in  the  other,  were  held  a  reasonable  time  for 
that  purpose.  These  cases,  however,  do  not  go  the  length  for  which 
they  were  pressed  at  your  Lordships'  bar;  they  do  not  necessarily 
warrant  an  inference  that  a  term  of  twenty-one  years,  for  which  no 
special  or  reasonable  purpose  is  assigned,  would  also  be  allowed ;  and 
I  do  not  state  them  as  the  foundation  upon  which  our  opinion  mainly 
depends.  They  are  only  irnportant  as  establishing  that  a  life  or  lives 
in  being  is  not  the  limitation ;  that  there  are  cases  iji  which  it  may  be_ 
exceeded.  Taylor  v.J2i'^ldal^2  Mod.  289  (1677),  is  the  first  instance 
wT^Ha^re- met  with  in  the  books, Jii^which  so  great^an  excess  as  twen- 
ty-one  yearVaTtefli  Tlle^  oFlives  in  being  xyas^  allo\\-ed;iLnd  tTiat  \vaT^ 
case^of  mTaiTcy:  rr^vas^aTTimitatlon  to  the  heirs  of  the  body  of^^^ob^ 
ert^WarRjrrT'and  their  heirs,  as  they  should  attain  the  respective  ages 
of  twenty-one;  there  might  be  an  interval,  therefore,  of  twenty-one 
years  between  the  death  of  Robert,  till  which  time  no  one  could  be 
heir  of  his  body,  and  the  period  when  such  heir  should  attain  twenty- 
one,  till  which  time  the  estate  was  not  to  vest:    and  that  limitation 


438 


RULE   AGAINST  PERPETUITIES 


(Part  4 


was  held  good  by  way  of  executory  devise.  That,  however,  was  a 
case  of  infancy,  and  it  was  on  account  of  that  infancy  that  the  vest- 
ing was  postponed.  This  case  was  followed  by,  and  was  the  founda- 
tion of,  the  decision  in  Stephens  v.  Stephens,  Cas.  temp.  Talb.  232. 
That  was  a  case  of  infancy  also  Tlie  executory  devise  there  was,  "to 
such  other  sorTof  thelSody  oT  my  daughter,  Mary  Stephens,  by  my 
son-in-law,  Thomas  Stephens,  as  shall  happen  to  attain  the  age  of 
twenty-one  years,  his  heirs  and  assigns  forever;"  and  the  judges  of" 
the  Court  of  King's  Bench  certified  that  the  devise  was  good.  The 
certificate  in  that  case  is  peculiar;  it  refers  to  Taylor  v.  Biddal,  and 
says,  "that  however  unwilling  they  miglit  be  to  extend  the  rules  laid 
down  for  executory  devises  beyond  the  rules  generally  laid  down  by 
their  predecessors,  yet,  upon  the  authority  of  that  judgment,  and  its 
conformity  to  several  late  determinations  in  cases  of  terms  for  years ; 
and,  considering  that  the  power  of  alienation  would  not  be  restrained 
longer  than  the  law  would  restrain  it,  viz.,  during  the  infancy  of  the 
first  taker,  which  could  not  reasonably  be  said  to  extend  to  a  perpetui- 
ty; and  considering  that  such  construction  would  make  the  testator's 
whole  disposition  take  effect,  which  otherwise  would  be  defeated ; 
they  were  of  opinion  that  that  devise  was  good  by  way  of  executory 
devise."  This  also  was  a  case  of  infancy;  it  was  on  account  of  that 
infancy  that  the  vesting  of  the  estate  was  postponed;  and  though,  un- 
der that  limitation,  the  vesting  of  the  estate  might  be  delayed  for 
twenty-one  years  after  the  deaths  of  Thomas  and  Mary  Stephens,  it 
did  not  follow  of  necessity  that  it  would ;  and  it  might  vest  at  a  much 
earlier  period.  These  decisions,  therefore,_clo_not  distinctly  or  neces- 
sarily establisji  the  position,  that  a  term  in  QTOSS^fojr  twenty-one 
years,  without  ~any  reference  to^jifancy,  after  a  life  or  lives  in  esse, 
will  be  goodT)y~wa3njf  executory  devise,;  but  there  is  nothiiiglmThem 
nprp^crcarTly  TrrT()iiriiif7"it  to  ra?rK"of  infancyT~TlTe  'contemporaiiebiis^ 
understanding  might  have  been,  that  it  extended_generally  to  any 
tenlTot  twenty-one^ears ;  and  there  are  some  authorities  which  lead 
to  a  belief  that  sucli  was  f^Te^ase.  Iri'GoodtTtle  v.  Wood.^Villes.  213  ; 
s.  c.~7T^.  R.  Iu3  n..  Lord  Cnief  Justice  Willes  discusses  shortly  the 
doctrine  of  executory  devises,  and  notices  their  progress  of  late 
years.  He  says :  "The  doctrine  of  executory  devises  has  been  set- 
tled ;  th£y_Iiayej3ot  been  consi^re(ri!l!lb^ffe~"possibilitiegl_^ 
tain  interests  aiid  estates,  and  liaye_bcen  resembled  to_XQntingent  re- 
m ai nHpf*^  in  all  other  respects,  only  tliey  have  been  piiJ;^jimler_so m e 
restraints,  to  prevent  perpetuities.  At  first  it  was  held,  that  the  con- 
tingen^y^^ll&LJiappen  witjim  tUTr^ompass  of  a  life  or  hves^n  being, 
or  a  reasonable  number  of  years;  atTength  it  was~extended  a  little 
further,  viz.,  to  a  child  en"'velltre  sa  mere,  at  the  time  of  the'tather ' s 
d  e  a  til ;  becSTTSTrT-as '  tlraT^conl  itigcncy  must  necessarilyjjappialaaatliin 
less"~t!ian~ntTTe'monTlTS  after  the  death  ol  a  person  inbeing.  that  con- 
st ruction~wouTd'  rhtroduce  no  inconvenience ;  and  the"  riite^as,  in 
many  instances,  beelT^extended  to  twenty-one  yeaTs~after  tTie^ath  of 


Ch.  1)  THE    RULE   AND   ITS   COROLLARIES  439 

a  person  in  being;  as  in  that  case,  likewise,  there_Ls.no  danger  of  a 
perpetuity."  Ancl  in  citing  this  passage  in  Thellusson  v.  Woodford, 
1  N.  R.  388,  Lord  Chief  Baron  Macdonald  prefaces  it  by  this  eulo- 
gium :  "The  result  of  all  the  cases  is  thus  summed  up  by  Lord  Chief 
Justice  Willes,  with  his  usual  accuracy  and  perspicuity."  He  does,  in- 
deed, afterwards  say,  1  N.  R.  393,  after  noticing  Long  v.  Blackall, 
"the  estal)lishcd  length  of  time  during  which  the  vesting  may  be  sus- 
pended, is  during  a  life  or  lives  in  being,  the  period  of  gestation,  and 
the  infancy  of  the  posthumous  child  ;"  and  that  rather  implies  that  he 
thought  the  rule  was  confined  to  cases  of  minority.  This  opinion  of 
Willes,  C.  J.,  though  not  published  till  1797,  was  delivered  in  1740; 
and  in  the  minds  of  those  who  heard  it,  or  of  any  who  had  the  oppor- 
tunity of  seeing  it,  might  raise  a  belief  that  there  were  instances  in 
which  a  period  of  twenty-one  years  after  the  death  of  a  person  in  esse, 
without  reference  to  any  minority,  had  been  allowed;  and,  though 
there  be  no  such  case  reported,  it  does  not  follow  that  none  such  was 
decided.  In  Goodman  v.  Goodright,  2  Burr.  879,  is  this  passage: 
"Lord  C.  J.  ManslTeid  says,  'it  is  a  future  devise,  to  take  place  after 
an  indefinite  failure  of  issue  of  the  body  of  a  former  devisee,  which 
far  exceeds  the  allowed  compass  of  a  life  or  lives  in  being,  and  twenty- 
one  years  after,'  which  is  the  line  now  drawn,  and  very  sensibly  and 
rightly  drawn."  This  was  published  in  1766;  and,  whether  the  last 
approving  paragraph  was  the  language  of  Lord  Chief  Justice  Mans- 
field or  the  reporter,  it  was  calculated  to  draw  out  some  contradiction 
or  explanation,  if  that  were  not  generally  understood  by  the  profes- 
sion as  the  correct  limitation.  In  Buckworth  v.  Thirkell,  3  Bos.  & 
Pul.  654  n.;  s.  c.  10  B.  Moore,  238  mTXord  Mansfield  says,  "I  re- 
member the  introduction  of  the  rule  which  prescribes  the  time  in 
which  executory  devises  must  take  effect,  to  be  a  life  or  lives  in  be- 
ing, and  twenty-one  years  afterwards."  In  Je^e_v.^Audley,  1  Cox,  325, 
Lord  Kenyon  (Master  of  the  Rolls)  says,  "The  limitations  of  personal 
estate  are  void,  unless  they  necessarily  vest,  if  at  all,  within  a  life  or 
lives  in  being,  and  twenty-one  years,  or  nine  or  ten  months  after- 
wards. This  has  been  sanctioned  by  the  opinion  of  judges  of  all 
times,  from  the  Duke  of  Norfolk's  Case,  3  Chan.  Ca.  1,  to  the  present 
time ;  it  is  grown  reverend  by  age,  and  is  not  now  to  be  broken  in 
upon."  In  Long_VjBlackall,  7  T.  R.  102,  the  same  learned  judge  says, 
"The  rules  respecting  executory  devises  have  conformed  to  the  rules 
laid  down  in  the  construction  of  legal  limitations ;  and  the  courts  have 
said  that  the  estates  shall  not  be  unalienable  by  executory  devises  for 
a  longer  time  than  is  allowed  by  the  limitations  of  a  common-law  con- 
veyance. In  marriage  settlements  the  estate  may  be  limited  to  the 
first  and  other  sons  of  the  marriage  in  tail ;  and  until  the  person,  to 
whom  the  last  remainder  is  limited,  is  of  age,  the  estate  is  unaliena- 
ble. In  conformity  to  that  rule,  the  courts  have  said,  so  far  we 
will  allow  executory  devises  to  be  good."  And,  after  referring  to  the 
Duke  of  Norfolk's  Case,  he  concludes,  "It  is  an  established  rule, 


440  RULE  AGAINST  PERPETUITIES        »  (Part  4 

that  an  executory  devise  is  good,  if  it  must  necessarily  happen  within 
a  life  or  lives  in  being,  and  twenty-one  years,  and  the  fraction  of  an- 
other year,  allowing  for  the  time  of  gestation."  In  Wilkinson  v. 
South,  7  T.  R.  558,  Lord  Kenyon  says,  "The  rule  respecting  execu- 
tory devises  is  extremely  well  settled,  and  a  liniitation,  by  wavj^f^ex- 
ecutoryjievise,  is_good,  if  it  may  (I  think  it  should  be,  must)  take 
place_after  a  life  or  lives  in  iDeing,  and  within  twenty-one  years,  and 
the  fraction  of  another  year  afterwards. "^  We  would  not  wish  the 
Hoifse  to  suppose,  that  there  were  not  expressions  in  other  cases 
about  the  same  period,  from  which  it  might  clearly  be  collected,  that 
minority  was  originally  the  foundation  of  the  Hniit,  and  to  raise  some 
presumption  that  the  limit  of  twenty-one  years  after  a  life  in  being 
was  confined  to  cases  in  which  there  was  such  a  minority;  but  the 
manner  iji  which  the  rule  was_expressed^^  the  instances  to  which"! 
have  referred,  as  well  as_in  text  writers,  appears  to  us  ^o  justify  the 
conclusion,  that  it  was  at  length  extended_to  theenTarg^  IimjFof_a 
life  or  lives  in  being,  and  twenty-one~years  afterwafdsr  It  is  difficult 
to  suppose,  tharmeiV^f  such  dismrrnnatTnglTunds^^nd  so  much  in 
the  habit  of  discrimination,  should  have  laid  down  the  rule,  as  they 
did,  without  expressing  minority  as  a  qualification  of  the  limit,  par- 
ticularly when,  in  many  of  the  instances,  they  had  minority  before 
their  e3'es,  had  it  not  been  their  clear  understanding,  that  the  rule  of 
twenty-one  years  was  general,  without  the  qualification  of  minority. 
Mr.  Justice  Blackstone,  in  his  Commentaries  (2  Bl.  Com.  [16th  Ed.] 
174),  puts  as  the  limTts  of  executory  devises,  that  the  contingencies 
ought  to  be  such  as  may  happen  within  a  reasonable  time,  as  within 
one  or  more  lives  in  being,  or  within  a  moderate  term  of  years ;  for 
courts  of  justice  will  not  indulge  even  wills,  so  as  to  create  a  per- 
petuity. The  utmost  length  that  has  been  hitherto  allowed  for  the 
contingency  of  an  executory  devise,  of  either  kind,  to  happen  in  is, 
that  of  a  life  or  lives  in  being,  and  twenty-one  years  afterwards ;  as, 
when  lands  are  devised  to  such  unborn  son  of  a  feme  covert  as  shall 
first  attain  twenty-one,  and  his  heirs,  the  utmost  length  of  time  that 
can  happen  before  the  estate  can  vest  is,  the  Hfe  of  the  mother,  and 
the  subsequent  infancy  of  her  son ;  and  this  has  been  decreed  to  be  a 
good  executory  devise.  Mr.  Fearne.  in  his  elaborate  work  upon  Ex- 
ecutory Devises,  lays  down  the  rule  in  the  same  way :  "An  executory 
devise,  to  vest  within  a  short  time  after  the  period  of  a  life  in  being, 
is  good;"  as  in  Lloyd  v.  Carew,  which  he  states,  and  Marks  v.  Marks; 
and  he  says,  "The  courts,  indeed,  have  gone  so  far  as  to  admit  of  ex- 
ecutory devises,  limited  to  vest  within  twenty-one  years  after  the  pe- 
riod of  a  life  in  being;"  as  in  Stephens  v.  Stephens,  Taylor  v.  Biddal, 
Sabbarton  v.  Sabbarton,  Cas.  temp.  Talb.  55,  245,  all  of  which  he 
states,  and  in  all  of  which  the  vesting  was  postponed  on  account  of 
minority  only;  and  then  he  draws  this  conclusion,  "That  the  law  ap- 
pears to  be  now  settled,  that  an  executory  devise,  either  of  a  real  or 
personal  estate,  which  must,  in  the  nature  of  the  limitation,  vest  with- 


Ch.  1)  THE    RULE   AXD   ITS   COROLLARIES  441 

in  twenty-one  years  after  the  period  of  a  life  in  being,  is  good ;  and 
this  appears  to  be  the  longest  period  yet  allowed  for  the  vesting  of 
such  estates."  The  instances  put,  all  instances  of  minority,  might  cer- 
tainly have  suggested  that  it  was  in  cases  of  minority  only  that  the 
twenty-one  years  were  allowed ;  but,  by  stating  it  generally,  as  he  did, 
he  must  have  considered  twenty-one  years  generally,  independently  of 
minority,  as  the  rule.  The  same  observation  applies  to  Mr.  Justice 
Blackstone.  That  such  was  Mr.  Fearne's  understanding,  may  be  col- 
lected from  many  other  passages  in  his  book;  but  from  none  more 
distinctly  than  in  the  third  division  of  his  first  chapter  on  executory 
devises,  (9th  Ed.  399,  401),  where,  after  having  mentioned  as  the  sec- 
ond sort  of  executory  devises,  those  where  the  devisor  gives  a  future 
estate,  to  arise  upon  a  contingency,  without  at  present  disposing  of 
the  fee,  and  after  putting  several  instances,  he  then  concludes  the  di- 
vision thus:  "And  the  case  of  a  limitation  to  one  for  life,  and,  from 
and  after  the  expiration  of  one  day  (or  any  other  supposed  period, 
not  exceeding  twenty-one  years,  we  may  suppose),  next  ensuing  his 
decease,  then  over  to  another,  may  be  adduced  as  an  instance  of  the 
call  for  the  latter  part  of  the  extent  to  which  I  have  opened  the  sec- 
ond branch  of  the  general  distribution  of  executory  devises."  And  in 
his  third  chapter  (page  470),  he  begins  his  eighth  division  with  this 
position:  "It  is  the  same  (that  is,  that  an  executory  devise  is  not  too 
remote)  if  the  dying  without  issue  be  confined  to  the  compass  of  twen- 
ty-one years  after  the  period  of  a  life  in  being."  And  in  the  eiglrth 
division  of  the  iburnfcHapfeFfpag'e  517)  Iie^sayi^"It  seems  now  to  be 
settled  that  whatever  number  of  limitations  there  may  be  after  the 
first  executory  devise  of  the  whole  interest,  any  one  of  them  that  is 
so  limited  that  it  must  take  effect,  if  at  all,  within  twenty-one  years 
after  the  period  of  a  life  then  in  being,  may  be  good  in  event,  if  no 
one  of  the  preceding  limitations  which  would  carry  the  whole  interest 
happens  to  vest."  The  opinion  of  ^Ir.  Fearne  is  continued  in  the 
diflferent  editions,  from  the  period  when  his  work  was  first  published, 
in  1773,  down  to  the  present  time;  but,  upon  that  expression  which 
occurs  in  Thellusson  v.  Woodford,  4  Ves.  337,  showing  that  a  doubt 
existed  in  the  mind  of  Lord  Alvanley,  that  doubt  is  introduced  into  a 
subsequent  edition,  for  the  purpose  of  consideration ;  but  it  does  not 
appear  to  me,  from  anything  expressed  by  his  great  and  experienced 
editor,  or  in  any  note  of  his,  that  he  thought  the  rule  laid  down  by 
Mr.  Fearne  was  not  the  right  and  correct  rule ;  but,  instead  of  that, 
he  seems  to  have  intimated,  that  his  opinion  was  in  conformity  with 
it ;  because  he  gives  extracts  from  what  Mr.  Hargrave.  who  agrees 
with  Mr.  Fearne,  had  said  upon  the  subject,  as  if  the  inclmation  of  his 
opinion  was  that  Mr.  Fearne  was  right,  and  that  the  unqualified  rule 
of  twenty-one  years  was  correct.  At  length,  in  Beard  v.  Westcott,  5 
Taunt.  393,  the  question,  whether  an  executory  devise  was  good, 
though  it  was  not  to  take  effect  till  the  end  of  an  absolute  term  of 
twenty-one  years  after  a  life  in  being  at  the  death  of  a  testator,  with- 


442 


RULE   AGAINST   PERPETUITIES 


(Part  4 


out  reference  to  the  infancy  of  the  person  intended  to  take,  was  dis- 
tinctly and  pointedly  put  by  Sir  W.  Grant,  the  then  Master  of  the 
Rolls ;  and  the  Court  of  Common  Pleas  certified  that  it  was.  The 
point,  though  necessarily  involved  in  that  will,  was  not  prominently 
brought  forward,  either  upon  the  will  itself,  or  upon  the  first  of  the 
two  cases  that  was  stated ;  and,  lest  it  might  have  escaped  the  notice 
and  consideration  of  the  Court  of  Common  Pleas,  it  was  made  the 
subject  of  an  additional  statement  to  that  court.  The  first  certificate 
was  in  November,  1812;  the  next  in  November,  1813;  and  the  judges 
who  signed  them  were  Sir  James  Mansfield,  Mr.  Justice  Heath,  Mr. 
Justice  Lawrence,  Mr.  Justice  Chambre,  and  Mr.  Justice  Gibbs,  men 
of  great  experience,  and  some  of  them  very  familiar  with  the  law  of 
executory  devises.  Those  certificates  stood  unimpeached  until  1822, 
when  the  same  case  was  sent  by  Lord  Eldon  to  the  Court  of  King's 
Bench,  and  that  court  certified  that  the  same'Hmitations  which  the 
Common  Pleas  had  held  valid,  were  void,  as  being  too  remote;  but 
the  foundation  of  their  certificate  was,  that  a  previous  Hmitation, 
clearly  too  remote,  and  which  was  so  Considered  by  the  Court  of 
Common  Pleas,  made  those  limitations  also  void  which  the  Common 
Pleas  had  held  good.  The  subsequent  limitations  were  considered  as 
being  void,  not  from  any  infirmity  existing  in  themselves,  but  from 
the  infirmity  existing  in  the  preceding  Hmitation ;  and  because  that 
was  a  limitation  too  remote,  the  others  were  considered  as  being  too 
remote  also.  Whether  the  Court  of  King's  Bench  gave  any  positive 
opinion  on  that,  I  am  unable  to  say.  I  think  the  Court  of  King's 
Bench  would  have  taken  much  more  time  to  consider  that  point  than 
they  did,  and  have  given  it  greater  consideration  than  it  received,  if 
they  had  intended  to  dififer  from  the  certificate  that  had  been  given  by 
the  Court  of  Common  Pleas;  but,  when  it  became  totally  immaterial, 
in  the  construction  they  were  putting  upon  the  will,  to  consider 
whether  they  were  or  were  not  prepared  to  differ  from  the  Court  of 
Common  Pleas,  it  is  not  to  be  wondered  at,  that  that  point  was  not 
so  fully  considered  as  it  might  otherwise  have  been.  Upon_the  direct 
authority,  therefore,  of  the  decision  of  the  Court  of  Common~Pleas, 
V.  WestcottT 


in  BearcPv.'  Westcott7~and:  the  dicta  by  L 
Maiisfield,  and  Lord  Kenyoii,  an 


C.  Justice  \Villes,  Lord 
le  rules  laid  down  in  Blackstone 


and  Fearne,  we  consider  ourselves  warranted  m  saying  that  the  limit 
is  a  life  "or  lives  in  being,  and  twenty<)ne~ years  attcrvvarcls,  without 
reference  to  the  mtancy  ot  any  person  wiiateven  Thi¥"wTll  certainly 
render  the  esiaie"TTii?ib'euaiile  lor  twenty-one  3^earg_aitgr  lives'in  being, 
but  it  will  preserve  in  safety  any  limitations  which  may  have  been 
made  upon  authority 


tTTcta  or  text  wriTFTs^  have  iTTentiOned ; 

and  it  wTTTnot  tie  upJiieJalierLaliaa-aii  unreasonable  length  orTTmeT^ 

Upon  the  second  and  third  questions  proposed  by  your  Lordships, 
whether  a  limitation  by  way  of  executory  devise  is  void,  as  too  re- 
mote,  or  otherwise,  if  it  is  not  to  take  ettt^CT  UhtH  after  tTie  determinaT 
tion  oT~a  life  or  lives  in  being,  artd  lip6n  rhrigxpiration  of  a  term  of 


Ch.  1)  THE    RULE   AND   ITS   COROLLARIES  443 

twenty-one  years  afterwards,  together  with  the  number  of  months 
eqiTaTTo^The  ordmary  or  longest  period  of  gestation,  but  the  vvliole 
of  such  years  and~months  To  beTaken"  as 'a~feFmTfi  ^rbss,  and  wiHTout 
reference  to  the  rhfancy'orany~persbn  whatever,  born  or  en  ventre TST 
*mere,T^he  unanimous  15f)IhTon  of  tlie  fudges  is,  that  such  a  hmifation 
wolild  be  void,  as  tooTemoteT  "nTey'co^nsider  twenty-one  years  as  the  • 
limit,  and  the  perioH~o7  gestation  to  be  allowed  in  those  cases  only^ 
wliich  tlie  gestation  exists.  ~  "^  ~~ 

'Villi,  Lord  (JiiancELLOrT  ~I  shall  move  your  Lordships  to  concur  in 
the  opinions  expressed  by  the  learned  baron,  as  the  unanimous  reso- 
lutions of  the  judges.  The  two  last  questions  were  put  with  a  view  to 
comprehend  more  fully  the  question  argued  at  the  bar,  and  to  see  the 
origin  of  the  rule.  That  rule  was  originally  introduced  in  conse- 
quence of  the  iiifancy  of  parties ;  but  whatever  was  its  beginnmg,  it  is 
n  o  w'to  betake^T  as  estab1ish^cn3y"tTTF'(ltcg]ofTTi^~judg^^  fronfTim  e 
to  time.  A  decision  of  your  Lordships  in  the  last  resort,  assTsfecl 
here  by  the  then  Chief  Justice  of  the  Common  Pleas,  in  Lloyd  v. 
Carew,  1  Show.  P.  C.  137,  settled  the  rule;  for  the  wdiole  question  was 
there  gone  into.  Some  doubt  has  been  expressed  as  to  whether  this 
principle  was  adopted  as  the  uniform  opinion  of  conveyancers.  It  is 
impossible  to  read  the  passages  read  by  the  learned  baron  from  Mr. 
Fearne's  book,  without  seeing  that  it  was  the  settled  opinion  of  that 
eminent  person,  that  twenty-oiTe_vears  might  be  taken  aljsolutely. 
The  able  editor  of  his  book  was  of  the  same  opinion,  and  MrTjTis- 
ticc  Buller's  opinion  was  stated  by  him  and  examined.  Mr.  Butler 
makes  it  a  question  of  separate  consideration,  and  treated  the  subject 
as  Mr.  Fearne  had  done.  The  opinion  of  Lord  MansfielH~was  the 
same,  and  the  doctrine  is  not  weakened  by  what  Lord  Kenyon  is  stat- 
ed to  have  said  in  Long  v.  Blackall,  7  T.  R.  100.  In  the  opinion  of  all, 
the  rule  was  clearly  confined  to  twenty-one  years,  as  the  period  now 
understood.  It  was,  however,  necessary  to  state  the  first  question, 
for  the  opinion  of  the  judges,  and  they  have  not  shrunk  from  the  con- 
sideration of  it.  It  was  also  right  to  have  put  the  other  two  ques- 
tions, to  which  the  learned  judges  also  applied  themselves,  and  they 
have  excluded  the  period  of  gestation  beyond  the  term  of  twenty-one 
years,  except  where  the  gestation  actually  exists.  If  your  Lordships 
be  of  the  same  opinion,  you  will  affirm  the  judgment  of  the  court  be- 
low, and  dispose  of  this  case.  The  rule  will  then  be,  that  a  limitation 
will  not  be  too  remote,  if  the  vesting-  be  suspended  for  tw^entv-one 
yeafTlSeyond  a  life  or  lives  in  being;  but  that  beyond  that  period  it 
would. 

Tlie  judgment  of  the  court  below  was  afBrmed. 


444  RULE  AGAINST  TERPETUITIEa  (Part  4 

ASHLEY  V.  ASHLEY. 

(Court  of  Chancery,  1833.    6  Sim.  358.) 

By  an  order  °  in  this  cause  the  master  was  directed  to  inquire  what 
interest  the  testator  had  in  a  certain  estate  in  London.  The  master 
found  that  James  Lewer,  being  seised  in  fee  of  said  estate,  died  in 
1773,  and  by  his  will  devised  said  estate  to  his  wife  for  life,  remain- 
der to  preserve  contingent  remainders,  remainder  to  his  daughter, 
Sarah  Chandler,  for  life,  remainder  to  trustee  to  preserve  &c.,  and 
after  her  death  to  "all  and  every  the  child  or  children"  of  Sarah  Chand- 
ler "equally  to  be  divided  between  fhem,  if  more^thali  one,  share  and 
sliare  alike,  and  to  take  as  tenants  in  common  and  not  as  joint  tenants, 
and  for  want  of  such  is'sue^of  Bar  ah  ClTanHTer"  then  to  his  daughter 
AIarv_H,^nd  for  lifg  with  like  remainders  to~HerglTildren,  rem^sinder 
to  Thomas  Chandler  infee;  The  residiie'of  his  estate,  real  and  per- 
sonal^e  gave„tQ,liis_  wije^in  fee  and  absolutely. 

Sarah  Chandler  had  eight  children^  living  at  the  death  of  James 
Lewer  or  bom  afterwards.  Five  of  them  had  died  without  issue,  but 
three  were  living. 

The  master  reported  that  all  the  limitations  in  the  will  failed,  subse.-. 
quent  to  tlie  devise  to  the  child  or  childreiroT^Sarah  ChancHer,  as  be- 
ing  onlv  to  take  effect  in  case  there  never  was  any  sucli_child]  anci 
that  the  children  of  Sarah  Chandler  tookTife  estates  only  without 
cross  remainders  between  them ;  and  that,  subject  thereto,  the  fee  sim- 
ple^'oTThe  houses  passed,  by  the  general  residuary  devise^to -tEe  widow 
of_James  Lewer,  the  testator. 

The  Vice-Chancellor  [Sir  Lancelot  Shadwell].  jvly  opinion 
is^directly  against  the  finding  of  the  master.  [His  Honor  here  read 
the  devise,  and  then  proceeded  thus:]  Now  but  one  subject  is  given 
throughout.  The  expression,  "for  want  of  sucliissue,''  means_want 
of  issue  wheneveFthat  event  may  happen.  eitherTS^Tthere^being^^chil- 
dren  originally,  or  by  the  children  ceasing  to  exist.  Those  words  seem 
to  me  to  create  "cross  remain3ers  by  implication. 

Declare  that  the  childreli'of  Mrs.  Chandler  took  estates  for  lite,  as 
tenants  in  common,  wTtli~crO^B-rei«a4H4ers  between  them  for  lITeTwith 
rem"ain3er  to  Mrs.  Hand  toiiJife,  with  remainder  to_her  children,  as 
tenants  in  common  for  life,  with  cross  remainders  between  them  for 
life,  with  remainder  to  Thomas  CiraridleFuTfee :  andTef er  it  back  to 
the  master  to  review  his  report.^"— ' — 

8  The  following  statement  is  substituted  for  that  in  the  report. 

10  See,  also,  Madison  v.  Larmon,  170  111.  65,  48  N.  E.  556,  62  Am.  St. 
Rep.  356 ;  Klingman  v.  Gilbert,  90  Kan.  545,  135  Pac.  682.  But  see  Fosdiek 
V.  Fosdiek,  6  Allen  (Mass.)  41. 


Ch.  1)  THE   RULE   AND   ITS  COROLLARIES  445 

SOUTHERN  V.  WOLLASTON. 

(Court  of  Chancery,  1852.     16  Beav.  27G.) 

The  testator,  by  his  will  dated  in  1835,  bequeathed  £400  Consols  to 
trustees,  upon  trust  for  his  cousin  Ed\vard^  Wollaston  for  life ;  and 
after  his  decease,  upon  trust  to  assign  and  transfer^^r^pa^,  distribute_ 
and  divide  the  same  unto  and^  equally  between  all  and  every  the  chil- 
dren and^ild  oLEdward  Wollaston  who  shall  be'  living  at  his  de- 
ceaseTand  who  should  then  be  of  or  afterwards  Kve  to_attain  Ihe^ge 
of  Twenty^fivej^ears ;   if  more  than  one,  in  equal  shares. 

There  was  a^gift  over,  in  case  there  should  be  no  child  living  at  his 
death,  or  of  their  all  dying  under  twenty-five.  And  the  testator  di- 
rected, that  after  the  decease  of  Edward  Wollaston,  and  while  any  of 
the  persons  presumptively  entitled  thereto  should  be  under  the  age  of 
twenty-five  years,  the  dividends  of  the  shares  of  the  persons  so,  for  the 
time  being,  under  that  age  in  the  i400,  should  be  applied  towards  the 
maintenance  and  education  of  the  person  to  whom  the  said  stock  mon- 
eys should,  for  the  time  being,  under  his  will  presumptively  belong. 

The  testator  died  in  1845.  Previous  thereto,  and  in J.837,  the  legatee 
EdwaT^'^'ollaston  had  jied,  leavmg  eleven  chjl.d£eji ;  _  four  only_  sur- 
viveH  the  testator,  and  the  youngest  attained  twenty-five  in_  1848^ 

"Tnjue^ttoTr'was  l^sed,  at  a  Tormer  Tiear'ihg  (r6~Beav.  166),  whether 
this  gift  to  the  class  of  children  was  or  wasjiot  void  for  remoteness ; 
andthe  point~norhaviiig~b'een  fully  argued.  The  impression  of  the  court 
then  was,  that  it  was_void,j3Ut_^permjssion_was^  obtained  to  argue  the 
point. 

TvTr.  Lloyd  and  Mr.  Bilton  now  appeared  for  the  children.  They 
argued  as  follows :  The  will  speaks  as  at  the  testator's  death.  This 
legacy  is  therefore  free  from  all  objection  in  regard  to  remoteness,  for 
the  tenant  for  life  was  the^iT_dead^  and  his  children  ascertained :  and 
as  they  were  all  more  than  fmir  ypgr^  nf  age  the  legacy  of  necessity 
vested  witlim  due  limits^jhat  is,  within  twenty-one  years  from  the  tes- 
tator'S  death.  "IfTWiITiamrv^Teale,  6  Hare,  p.  251,  Sir  James  WigFam 
expressed  his  opinion  on  the  very  point.  He  says,  "A  third  point,  upon 
which  my  mind  is  also  made  up,  is  this:  that,  in  considering  the  va- 
lidity of  the  limitations  in  this  will,  with  reference  to  the  state  of  the 
testator's  family,  the  state  of  the  family  must  be  looked  at,  as  it  ex- 
isted at  the  time  of  the  death  of  the  testator,  and  not  as  it  existed  at 
the  date  of  the  will.  If  a  testator  should  give  his  property  to  A.  for 
life,  with  remainder  to^uch  of  A.'s  children  as  sliuuld^ft^t^wenty- 
five"  years  df~age,  and  the  testator^sfiouldZdieTTiving  A.,  there  is  no^ 
doubt  but  that  the  limitations' over  to  the  children  of  A.  would  be  void, 
Lealce  V.  Rubhisuii,  2-M€fr^63;  blit  it,  m  that  case,  A.Tiad~diecl  living 
the  testator,  and  at  the  death  of  the  testator  all  the  chiTdren  of  A.  had 
attaTiTed^went}Rlve',lhe~c^ass  would  be  then  ascertained,  and  I  cannot 
thinlTit  possible  that  any  court  of  justice  would  exclilde  them  from  the 


446  RULE   AGAINST  PERPETUITIES  (Part  4 

benefit  of  the  bequest,  on  the  ground  only,  that  if  A.  had  survived  the 
testator,  the  legacy  would  have  been  void,  because  the  class  in  that 
state  of  things  could  not  have  been  ascertained."  ^^ 

The  Master  of  the  Rolls  [Sir  Johx  Romilly]  said  he  should 
follow  the  case  of  Williams  v.  Teale,  and  declare  that  the  gift  to  the 
children  was  not  void  for  remoteness. 


AVERN  V.  LLOYD. 

(Coiirt  of  Chancery,  ISGS.    L.  R.  5  Eq.  383.) 

This  cause  came  on  to  be  heard  on  further  consideration  and  on  a 
petition. 

Joseph  Wright,  by  will,  in  March,  1780,  after  directing  his  execu- 
tors, as  soon  after  his  decease  as  might  be  convenient,  to  sell  all  his  ef- 
fects, and  to  invest  the  proceeds  in  some  of  the  public  funds,  directed 
them  to  pay  one  moiety  of  the  dividends  to  arise  from  such  funds  to 
his  brother  Francis  for  life,  and  after  his  decease  to  the  is?TIe^ale  of 
his"  brotlipr  h]-nncis  equally,  share  and  share  alike,  for  their  lives  and 
the  life  of  the  longer  liver,  and  after  the  decease  of  the  survivor,  or  in 
case  there  should  be  no  such  male  issue  ot  his  brother  Francis,  to  pay 
such  moiety  of  the  dividends  to  his  brother  John  Wright  for  life,  and 
after  his  decease  to  his  issue  male  equahy,  share  ana  share  alike,  for 
their  respective  lives  and  the  life  of  the  longer  liver ;  and  after  the  de- 
cease ofth£_survivor,  or  in  case  there  should  be  no  such  issue  "male 
of  his  brother  John,  then  to  all  and  every  the  daughters  and  daughter 
of  his  brother  Francis  equally,  share  and  share  alike,  for  their  respec- 
tive  hves,  and  to  the  survivors  and  survivor ;  and  after  the  decease^  of 
the  survivor  of  such  daughters  and  daughter  of  his  brother  Francis, 
he  bequeathed~tTTie  moiety  of  "'The  tunds  and  the"~dividends  tTTereoTTo 
the  executors,  administrators,  and  assigns  ot  the  survivor  of  his  brgtli^ 
ers  John  and  Francis,  or  their  issue,  male  or  female,  wdio  shoiild  hap- 
pen to  be  such  survivor.  The  testator  directed  his  executors  to  pay 
the  other  moiety  ot  such  funds  to  his  brother  John  for  life,  and  after 
his  decease  to  pay  the  dividends  of  such  moiety  to  his  issue  male  for 
their  lives  and  the  life  of  the  longer  liver ;  and  after  the  decease  of  the 

11  The  rest  of  the  remarks  of  Wigram,  V.  C,  in  Williams  v.  Teale,  6  Hare, 
239,  251  (1847),  on  this  point  is  as  follows :  "I  have  noticed  this  point  he- 
cause  I  find  that  an  intellisent  writer  (I  allude  to  jNIr.  Lewis,  in  his  hook  of 
Perpetuities)  has  expressed  a  contrarj-  opinion  in  his  observations  on  the 
case  of  Vanderplank  v.  King,  3  Hare,  1,  and  has  upon  that  ground  doubted 
the  correctness  of  my  decision  in  that  case.  In  another  part  of  the  same 
book,  the  cases  upon  which  he  founds  his  opinion  are  collected  and  com- 
mented upon ;  but  upon  examining  those  cases,  it  appears  to  me  that  none  of 
them  (as  it  Is  in  terms  admitted)  is  inconsistent  with  the  opinion  I  have 
expressed.  I  have  considered  the  point  with  much  attention,  and  I  am  clear 
that  the  f|uestion  to  be  considered  is.  How  the  family  stood  at  the  deatli  of 
the  testator,  and  not  now  it  stood  aT"liii>    rui'lii  i   (TTire.    " """        '      ' 


Ch.  1)  THE    RULE   AND   ITS   COROLLARIES  447 

survivor,  or  in  case  there  should  be  no  such  issue  male  of  his  brother 
John,  to  his  brother  Francis  for  life,  and  after  his  decease  to  his  issue 
male  equally,  for  their  lives  and  the  life  of  the  longest  liver ;  and  after 
the  decease  of  the  survivor,  or  in  case  there  should  be  no  such  issue 
male  of  his  brother  Francis,  then  to  all  and  every  the  daughters  and 
daughter  of  his  brother  Francis  equally,  for  their  lives  and  the  lives  of 
the  survivors  and  survivor,  and  after  the  decease  of  the  survivors  and 
survivor  of  such  daughters  and  daughter  of  his  brother  Francis,  he 
bequeathed  the  last-mentioned  moiety  of  such  funds  and  the  dividends 
to  the  executors,  administrators,  and  assigns  of  the  survivor  of  his 
brothers  John  and  Francis,  or  their  issue,  male  or  female,  who  should 
happen  to  be  such  survivor. 

The  testator  died  in  1785. 

Francis  Wright  died  in  1801,  leaving  three  sons,  Joseph,  John,  and 
Francis,  and  five  daughters,  of  whom  Ann  intermarried  with  the  de- 
fendant Robert  Lloyd. 

In  March,  1815,  in  a  suit  instituted  by  the  three  sons  against  their 
uncle  John  and  others,  for  the  purpose  of  having  their  rights  under  the 
will  declared.  Sir  W.  Grant  ordered  the  transfer  into  court  by  the 
uncle  John  of  £1100  £3  per  Cent  Stock,  and  of  £950  New  South  Sea 
Annuities,  in  trust  in  the  cause  "the  account  of  the  legatees  for  life ;  " 
that  the  costs  should  be  taxed  and  paid  out  of  a  sale  of  sufficient  of 
such  stock;  that  one  moiety  of  the  dividends  accruing  on  the  residue 
of  such  stock  until  such  sale,  and  on  the  residue  after  such  sale,  and 
one  moiety  of  the  dividends  accruing  on  the  annuities,  should  be  paid 
to  the  three  plaintiffs  in  equal  shares  during  their  joint  lives,  and  after 
the  death  of  them,  or  either  of  them,  that  the  whole  of  the  dividends 
of  the  last-mentioned  money  should  be  paid  to  the  survivor  during  his 
life;  and  that  the  dividends  accruing  on  the  other  moiety  of  the  an- 
nuities should  be  paid  to  the  uncle,  John  Wright,  during  his  life,  and 
that  on  his  death  and  that  of  the  survivor  of  the  three  plaintiffs,  any 
persons  entitled  to  the  moieties  of  the  stock  and  annuities  were  to  be 
at  liberty  to  apply  to  the  court. 

The  funds  were  transferred  into  court,  and  by  the  payment  of  costs 
the  stock  was  reduced  to  £764  13s.  8d. 

The  uncle,  John  Wright,  died  in  1818  without  issue.  In  January, 
1819,  it  was  ordered  in  the  cause  that  the  whole  of  the  dividends  on 
the  stock  and  annuities  should  be  paid  to  the  plaintiffs,  Joseph,  John, 
and  Francis  Wright  equally.  Joseph  Wright  died  in  1820,  and,  on  pe- 
tition, it  was  ordered  that  the  dividends  should  be  paid  to  John  and 
Francis  in  moieties.  John  and  Francis  sold  their  interests  in  the  stock 
and  annuities,  and  it  was  ordered  that  the  dividends  should  be  paid 
to  their  assignee  during  their  lives  and  the  life  of  the  survivor.  John 
Wright  died  in  1849.  Ann  Lloyd  was  the  survivor  of  the  five  daughters 
of  Francis,  the  brother  of  the  testator.  She  died  in  1842,  and  the  de- 
fendant, her  husband,  became  her  legal  personal  representative. 

Francis  Wright,  the  survivor  of  the  three  plaintiffs  above  mentioned, 


448  RULE   AGAINST  PERPETUITIES  (Part  4 

died  in  April,  1856,  and  since  that  date  no  dividends  had  been  paid 
to  any  person.  Letters  of  administration  to  the  effects  of  the  said 
Francis  were  granted  to  his  daughter,  the  plaintiff,  Emma  \l.  Avern, 
and  she  and  her  husband,  in  April,  1863,  filed  their  bill  praying  for 
a  declaration  that  she,  as  administratrix,  was  entitled  to  the  funds  in 
court,  or,  if  not,  that  the  rights  of  all  parties  under  the  will  might  be 
declared. 

Sir  John  Stuart,  V.  C.  In  this  case  there  is  no  question  as  to 
the  validity  of  the  limitation  of  the  life  estates  in  remamder  tofhe"Tin^ 
born  issue,  male  andTemale,  of  the  testator's  brothers.  John  _andj'ran- 
cis^!  The__un15orn  issue TTearly__take  life  estates,  share  and  share  alike. 
But  it  has  been  contended  that  the  ultimate  limitation  to  the  executors, 
administrators,  and  assigns  of  the  survivor  of  these  tenants  for  life 
is  too  remote.  The  limitation  is  in  these  terms :  "To  the  executors, 
administrators,  and  assigns  of  the  survivor  of  his  brothers  John  and 
Francis,  or  their  issue,  male  or  female,  who  shall  happen  to  be  such 
survivor."  Considering  that  this  limitation  to  the  executors,  admin- 
istrators, and  assigns  must  take  effect  in  the  lifetime  of  one  of  the  un- 
born issue  to  whom  a  good  estate  for  life  is  given,  so  as  to  give  him 
an  absolute  estate  in  possession  when  he  becomes  survivor,  it  is  not 
easy  to  see  on  what  ground  it  can  be  considered  as  too  remote.  The 
gift  to  the  executors,  administrators,  and  assigns  of  the  sur\-iving  ten- 
antfor  Jife  aTtaclTes'to  the  life  estate,  so  as  to  give  a  contingent  abso- 
lute interestToeacTi  tenant  for  life.  This  contingent  absolute  mter- 
est  vests  in  possession  in  the  survivmg  tenant  for  life  as  soon  as  he  is 
ascertained.  It  attaches  the  absolute  interest  as  much  to  the  life  es- 
tate in  the  case  of  personal  property  as  the  rule  in  Shelley's  Case,  1 
Rep.  219,  attaches  the  inheritance  to  the  life  estate  in  the  case  of  a  con- 
tingent limitation  to  the  heirs  or  the  heirs  of  the  body  of  the  tenant 
for  Hfe  of  a  freehold  estate,  so  as  to  make  the  heir  take  by  descent 
when  the  contingency  happens.  Each  of  the  tenants  for  life  in  this 
case  had  as  much  right  to  alien  his  "conrmgent  right  to  the  ab-5gtufe"ln- 
terest  as  to  alien  his  life  estate;  and  the  person  clamimg  uncleTan  as- 
signment oithe  whole  eijiate  lilld"interest  of  the  tenant  for  life_3K!Liild, 
as  soon  as  his  assignor  became  the  survivor  of  the  other  tenants  for 
life,  be  entitled  to  the  possession  and  enjoyment  as  absolutel5wj"'er.  ^It 
seems  obvious  that  such  a  case  is  not  within  the  principle  on  whidj^ 
the  law  against  perpetuity  rests,  and  that  the  limitation  in  question  of 
the  absolute  interest  does  not  fail  as  being  too  remote. 


Ch.  1)  THE   RULE  AND   ITS   COROLLARIES  449 

EVANS  V.  WALKER. 
(Chancery  Division,  1876.     3  Ch.  Div.  211.) 
See  ante,  p.  172,  for  a  report  of  the  case. 


ABBISS  V.  BURNEY. 

(Court  of  Appeal,  ISSl.     17  Ch.  Div.  211.) 

JessEL,  M.  R.^2  This  is  an  appeal  from  a  decision  of  Vice-Chancel- 
lor Malins  upon  an  important  point  of  real  property  law.  The  firsts 
question  is  whether  the  rules_a^  to  remoteness  apply  to  what  has  been 
termed  an  equitable  Temamder,  where  the  legal  estate  has  Been  vested 
in  trustees  under  the  same  instrument  which  creates  the  equitable  es- 
tate. The  second  question  is,  wliethfiiLJJie^Hmitaiionjwitli  which  we 
have  to  deaHn  this  case  is  an  eqiutable  remainder  or  an  executory~3e- 
yise. 

The  gifts  in  the  will,  so  far  as  relates  to  the  real  estate,  may  be  stated 
very  shortly.  There  was  a  devise  of  freehold  estate  to  trustees  and 
their  hdrs,  vesting  in  them  the  legal  fee  upon  trust  to  p^y~fhe  rents 
to  tlie  testator's  wife.  Maria  Finch^  forheFlTfe,  then  upon  trust  that 
the  trustc^es  should^^iringjhe  life  of  one^^Tgnry  MayeF,  who  was  then" 
livmg,  retain  the  rents  for  their  own  use,  and  after  his  death  ul)oh 
trust_to__coiivey  the~Ir^ehold  estates  ^rTfte^testator  imto_such  son  of 
^^  iiliam  Macdonald  asshould  first  attain  the  age  of  twenty-five  years, 
his  heirs  and  assigns,  absolujely^  forever7~siibject  to~arcon(litron  as  tG~ 
talai%  the  name  and  arms  of  the  testator,  and  in~TheliTean^timelTe~di- 
recled  thaFthe  rents  should  accumulate  for  his  and  their  benefit. 

The  only  facts  necessary  to  be  stated  are  that  William  IMacdonald 
was  living  at  the  death  of  the  testator,  and  no^n  of  his  had  then  at- 
tamecTThejigejDXJwie^iity^xe)  but  he  had  a  son  who,  after  the  testator's 
death  but^during  the  lifetime  of  Maria  Finch,  attained  the  age^of  twen- 
ty-^fivei  Maria  Finch  and  Henry  Mayer  being  both  deacT,  the  question 
now  arises  whether  the  limitation  to  the  son  of  William  Macdonald 
who  should  first  attain  the  age  of  twenty-five  years  is  or  is  not  void 
for  remoteness.  The  V^ice-Chancellor  decided  that  it  is  not  void  for 
remoteness  on  certain  technical  grounds  which  I  will  proceed  to  con- 
sider. 

Of  course,  if  this  is  a  limitation  by  way  of  executory  devise  it  is 
void  for  remofeness.  the  rule  as  to  remoteness  being  that  an  executory" 
devise,  in  order  tobe  valid,  must  be  such  as  necessarily  to  take  efifect 
within  a  life  or  lives  in  being  at  the  death  of  the  testator  and  twenty- 
one  years  afterwards.    Now  it  is  obvious  that  the  limitation  to  the  first 

12  The  ease  is  stated  in  the  opinion  of  Jessel,  M.  K, 
4  Kales  Prop. — 29 


450 


RULE  AGAINST   PERPETUITIES 


(Part  4 


son  of  William  Macdonald  who  attains  the  age  of  twenty-five  years  is 
not  confined  within  the  period  of  any  life  in  being  and  twenty-one  years 
afterwards. 

The  ground  on  which  it  was  endeavored  to  support  the  gift  was  this : 
it  was  said  that  the  gifjJ(^ili£,son  ofWilliarn  Macdmiald_i:ta^_aii_eqiii- 
table  contmgent  remainder,  and^ that  according  to  the  law  of  coiitingent 
rernirrrtders^he  estate  cduIH'not  take_effect_at_all  unlessJFwas~vested 
at  tlie^death  ofTlTF survivor  ol  Maria  Finch  and  Henry  Mayer,  aiid 
thalTTHeref orer~if "couIdniaE"^  "void  for  remoteness,  as  it  must  take 
effecTat  the^'g^cprraTion  ot  Iivg?Tn  being^f  lio^'TaFari-  "The  argument 
proceeded  on  the  footing  that  the  same  rules  whicli"govern  devises  of 
legal  estates  in  freeholds  govern  also  devises  of  equitable  estates,  using 
the  term  equitable  in  the  sense  I  have  mentioned,  and  the  Vice-Chan- 
cellor  gave  effect  to  that  argument. 

The  first  observation  to  be  made  upon  that  is,  that  these  contingent 
equitable  raiiainders,  as  they  are  sometimes  called,  jig  not  stand  upon 
the  saine  footing  as  legal  remainders.  The  reason  why  a  contingent 
remainder  under  a  legal  devise  failed,  if  at  the  death  oTthe  previous 
holder  of  tHe  "est3te~of  freehold  there  was  no  person  wlia_answered 
the  description  of  the  remainder-nian  next  to  take,  was  the  feudal  rule 
that  the  freeKold  could  never  be  vacant,  for  that  there  musFalways'be 


a  tenant  to  render  the  services  to  the  lord,  and  therefore  if  the  remain- 
der could  not  take  effect  immediately  on  the  determination  of  the  prior 
estate,  it  never  could  take  effect  at  all.  Xhisu::£SulLof  feudal  rules  was 
never  held  tq^ap^ly  to  equitable  estates,  and  it  was  sometimes""said'Tfrat 
theTegal_esfate  in  the  trustee  supported  tEe^  remainder.  That  was  not 
the  best  mode  of  expressing  the^doctrine,  the~prmciple  really  being  that 
as  the  legal  estate  in  the  trustees  fulfilled  all  feudal  necessities,  there 
being  always  an  estate  of  freehold  in  existing  persons  who  could  ren- 
der the  services  to  the  lord,  there  was  no  reason  why  the  limitations  in 
remainder  of  the  equitable  interest  should  not  take  effect  according  to 
the  intention  of  the  testator.  If  at  the  time  of  the  determination  of 
the  prior  equitable  estate  of  freehold  there  was  no  person  capable  of 
taking,  a  person  afterwards  coming  into  existence  within  the  limits  of 
the  rule  of  remoteness,  and  answering  the  terms  of  the  gift,  was  al- 
lowed to  take.  So  that  the  doctrine  of  ascertaining  once  for  all__at 
the^deatb  of  tlie-tenant  for  life  what  personsj!^£re_to^take  under^Jhe 
subsequent  jcontingent  limitations,  had  no  application  to  equitable  es- 
tates. Equity  hai;  not  on  this  subject  followed^the  law.  According  to 
my  experience  it  has  always  "Been  assumed,  without  argument,  that 
where  the  fee  is  vested  in  trustees  upon  trust  for  a  man  for  life,  and 
after  his  death  upon  trust  for  such  of  his  children  as  being  sons  shall 
attain  twenty-one,  or  being  daughters  shall  attain  that  age  or  marry 
under  that  age,  and  at  the  death  of  the  tenant  for  life  there  are  some 
children  adult  and  some  minors,  the  minors,  if  they  live  to  attain  twen- 
ty-one, will  take  along  with  the  others ;  but  if  equity  had  followed  the 
law,  then,  inasmuch  as  there  were  persons  capable  of  taking  at  the 


Ch.  1)  THE   RULE  AND   ITS  COROLLARIES  451 

death  of  the  tenant  for  life,  namely,  the  adult  children,  they  would 
have  taken  to  the  exclusion  of  the  children  who  were  minors,  as  was 
the  case  where  the  limitations  were  legal.  It  appears  to  me,  there- 
fore, that  where  the_Jegal_fee  is  outstanding  in  the  trustees,  that  doc- 
trine of  conTTrigent  rern^mders^wTiich,  until  the  recent  Statute,  pre- 
vemed  contrngenTTeman-idefs  from  taking  effect  at  airurrtesB^they  vest^' 
ed'ir'the  moment~df  the  termination  of  the  prior" estate  ItTT reeliold, 
has~no  operatJunTand-on  that  ground  Tlhink  this  appeal^should'be  al- 
lowing 

On  the  second  point  also  I  must  differ  from  the  conclusion  arrived 
at  by  the  learned  judge  of  the  court  below.  I  cannot  find  that  there 
is  any  equitable  remainder  to  any  child  of  William  Macdonald.  There 
is  a  gift  to  the  trustees  upon  trust  for  the  widow  for  life ;  then  there 
is  a  direction  to  them  to  retain  the  rents  for  their  own  benefit  during 
the  life  of  Henry  Mayer,  which  is  not  an  equitable  remainder,  because 
they,  having  the  legal  ownership,  cannot  have  a  separate  equitable  es- 
tate. Then,  on  the  death  of  Henry  Mayer,  there  is  a  direction  to  them 
to  convey  the  legal  estate  to  the  first  son  of  William  Macdonald  who 
attains  twenty-five.  That  direction  to  convey  does  not  give  the  son 
of  William  Macdonald  an^equitable  remainder  expecISiit  uii  a  priui  ■ 
eqlTttabie-iife~estate.  There  is  no^  equitable  lite  estate  alter  the  death 
of  "the  wido'wT  and  the  direction  to  the  trustees  to  convey  is  nothing 
like  a  remainder.  In  my  opinion,  therefore,  the  gift  to  the  son  of  Wil- 
liam Macdonald  is  an  executory  limitation,  and  subject  to  all  the  rules 
with  regard  to  executory  limitations,  and  on  this  ground  also  I  am  of 
opinion  that  the  decision  appealed  from  ought  to  be  reversed. 

Cotton,  L.  J.  I  am  of  the  same  opinion.  One  point  argued  by  Mr. 
Williams  was  that  the  attaining  twenty-five  years  was  not  part  of  the 
description  of  the  person  to  take,  but  that  the  gift  was  to  be  construed 
as  a  gift  to  the  first  son,  with  a  gift  over  if  he  did  not  attain  that  age, 
and  he  referred  to  cases  in  which  a  violent  construction  of  that  kind 
has  been  put  by  the  court  upon  devises  of  real  estate  so  as  to  give  ef- 
fect to  what  was  considered  by  the  court  to  be  the  intention  of  the  tes- 
tator. I  asked  Mr.  Williams  whether  that  violent  construction  had 
ever  been  put  upon  a  gift  which  included  both  real  and  personal  es- 
tate, and  he  was  not  able  to  refer  me  to  any  such  case.  But,  inde- 
pendently of  that,  how  can  it  be  said  that  in  a  gift  to  such  son  of  Wil- 
liam Macdonald  as  shall  first  attain  the  age  of  twenty-five  years,  the 
attaining  that  age  is  not  part  of  the  original  gift  and  part  of  the  de- 
scription of  the  devisee.  Where  that  violent  construction  has  been  put 
upon  the  words  there  has  generally  been  some  obscurity  or  ambiguity 
in  the  original  gift,  or  there  has  been  a  gift  over  on  the  person  not  at- 
taining the  prescribed  age.  In  the  latter  case,  as  Vice-Chancellor 
Wigram  said,  in  the  case  of  Bull  v.  Pritchard,  5  Hare,  567,  591,  the 
court  construed  the  testator  as  giving  all  he  had  to  the  first  taker,  ex- 
cept what  he  had  given  to  the  devisee  over.    But  here  there  is  no  gift 


452  RULE   AGAINST   PERPETUITIES  (Part   4 

over  of  that  kind,  and  tke  attaining  of  the  age  of  twenty-five  is  an 
essential  part  of  the  description  of  the  person  who  is  to  take. 

Then,  assuming  this  is  not  to  be  a  vested  interest  before  the  son  at- 
tains twenty-five,  is  the  devise  bad  or  not  for  remoteness  ?  The  Vice- 
Chancellor,  as  I  understand  him,  proceeded  on  this  ground.  He  said 
if  there  is  a  legal  contingent  remainder  that  remainder  of  necessity 
must  be  vested  gt  the'cealmg  of  the  particular  estate  upon  which  it  is 
limited  or jiot  take  effect  at  all  and  therefore,  even  although  it  is  to  a 
persorTiFhe  attains  twenty-five,  yet,  as  it  must  vest  at  or  before  the 
determination  of  the  prior  life  estate,  there  can  be  no  question  of  re- 
moteness,  for  if  it  ever  comes  into  effect  at^all  it  must  come  mto  effect 
on  the^xpifation  of  a  life_or  lives  in  being.  That  no  doubt  is  so,  but 
how  can  that  apply  to  limitations  of  this  kind,  where  the  testator,  by 
his  will,  dealing  with  the  legal  estate  and  vesting  it  in  trustees,  has  di- 
rected that  they  are  to  hold  it  in  certain  events  and  at  certain  times  on 
particular  trusts ?  The  rule_does  not  apply  in  equity,  because  in  equity 
the  feudal  rules^  of  tenure  wilLnoLbejillowedlcrcletea't  the  trusts  which 
the  testator  lias^declared  by  his  will,  and,  even  although  at  the  ter- 
miiiaHon  of  the  particular  estate  the  persons  cannot  be  ascertained,  yet 
the  court  w'ill  afterwards  enforce  the  trusts  in  favor  of  persons  who 
subsequently  come  into  esse  and  answer  the  description  of  the  objects 
of  gift.  It  follows  that  the  objection  on  the  ground  of  perpetuity  is 
not  removed. 

I  quite  agree  wath  the  Master  of  the  Rolls  that  the  question  really 
does  not  arise  here,  because  tliere  is  no  limitation  by  wav  of  remainder. 
The  estate  being  given  by  the  testator  to  trustees,  he  has  directed  that 
at  a  particular  time  their  estate  shall  be  put  an  end  to  by  their  con- 
veying it  away  to  somebody  else.  They  are  not  directed  to  hold  it  upon 
trust  for  somebody  else  during  his  or  her  life  and  afterwards  in  trust 
for  a  remainder-man,  but  they,  having  the  fee  absolutely  in  themselves, 
are  directed  after  a  particular  time  to  convey  that  estate  from  them- 
selves, and  to  give  the  person  then  to  be  entitled  the  legal  estate.  Of 
course,  if  there  be  no  objection  on  the  ground  of  remoteness,  equity 
w^ould  compel  them  to  hold  it  after  that  particular  time  for  the  benefit 
of  the  person  to  whom  they  ought  to  convey,  but  as  a  matter  of  limita- 
tion in  the  will  it  is  not  a  1imjfatu}I!_ilf  ^^  pgnitahlp  pt^tatpjn^remainder, 
it  is  merely  a  direction  at  a  future  time  to  convey  the  estate  to  some- 
body else^  r~atTi  ttiereTore^f  opinion  that  the  c^uestion  of  contingent 
remainders  really  does  not  arise,  and  that  the  trust  to  arise  here  at  a 
per'To3~~beyDTrd  fliat  allowed  by  the  rulesof_perpetuity  mus^^e  dealt 
with  as  aiTexecuTory  trust  and  not  as  an  equitable  remainder.  fiTTTiy 
opinion,  thercforeTThe^decisfon  of  the  ^Vice^^Chancellor  is  erroneous, 
and  must  be  reversed. 

Lush,  L.  J.  I  am  of  the  same  opinion.  It  is  somewhat  remarkable 
that  there  is  no  decision  to  be  found  expressly  upon  this  point,  but  I 
may  observe  that  it  has  been  published  as  the  opinion  of  very  eminent 
text-book  writers,  and  was  assumed  in  Blagrove  v.  Hancock,  16  Sim. 


Ch.  1)  THE   RULE  AND   ITS   COROLLARIES  453 

371,  as  well  by  the  counsel  on  both  sides  as  by  the  learned  Vice-Chan- 
cellor  himself,  that  the  doctririe  as  to  excepting  contingent  remainders 
from  the  rule  as  to  remoteness  is  not  appUcable  to  equitable  estates. 
The  reason  appears  t6~be"a  very  obvious  one.  The  doctrine  in  ques- 
tion was  founded  entirely  upon  the  requirements  of  the  feudal  law 
which  necessitated  that  there  should  always  be  somebody  in  possession 
as  tenant  of  the  land  to  render  service  to  the  lord,  and  therefore  if  the 
contingent  estate  did  not  take  effect  at  the  time  when  the  preceding  es- 
tate ended,  then  it  could  not  take  effect  at  all ;  so  that  remoteness  was 
out  of  the  question.  The  courts  of  equity  never  interfered  with  that 
doctrine,  but  when  they  came  to  deal  with  the  equitable  limitations  of 
real  property,  where  the  legal  fee  was  given  to  trustees  by  the  same 
instrument,  so  that  there  were  persons  always  at  hand  to  fulfil  the  re- 
quirements of  the  feudal  law,  the, courts  of  equity  dealt  with  those 
equitable  limitations  according  to  their  own_principles,  and^disre^fd- 
ing'the  teudal  law,  to  which  there  was  no  necessity  to  pay  any  atten- 
tion, as  its  requirements  were  already  satisfied,  they  carried  out  the  in- 
tention of  the  testator  by  giving  effect  to  the  equitable  limitations  ac- 
cordingjo  the  terms  of  his  will._  But  then  came  in  another  doctrine, 
founded  on  principles  of  public  policy,  that  an  estate  cannot  be  tied  up 
longer  than  for  a  life  or  lives  in  being,  and  for  twenty-one  years  aft- 
erwards. 

In  this  particular  case  the  testator  directed  that  the  estate  should  be, 
after  the  death  of  Henry  ]\Iayer,  conveyed  by  the  trustees  unto  such 
son  of  William  Macdonald  as  should  first  attain  the  age  of  twenty-five 
years,  and  the  rents  and  profits  of  the  estate  v.-ere  to  be  accumulated 
until  he  attained  the  age  of  twenty-five  years.  If,  therefore,  the  eldest 
son  of  William  ^Macdonald  had  been  born  in  the  year  in  which  Henry 
INIayer  died,  the  rents  and  profits  of  the  estate  might  have  been  left  to 
accumulate,  and  the  vesting  of  the  estate  might  have  been  postponed 
beyond  the  period  of  twenty-one  years  from  the  expiration  of  any  life 
in  being.  I  am  therefore  of  opinion  that  the  limitation  to  the  son  of 
William  Macdonald  is  void  for  remoteness. 


In  re  HARGREA\'ES. 

(Court  of  Appeal,  1890.     43  Ch.  Div.  401.) 

Hannah  Hargreaves,  by  will  dated  the  24th  of  November,  1838, 
devised  to  John  Townsend  and  Henry  King  certain  specified  free-' 
holds,  ''To  have  and  to  hold  the  same  unto  and  to  the  use  of  them,  the 
said  John  Townsend  and  Henry  King,  and  the  survivor  of  them,  and 
the  heirs  and  assigns  of  such  survivor  upon  the  trusts,  nevertheless, 
and  to  and  for  the  several  uses,  ends,  intents,  and  purposes  thereinafter 
mentioned,  expressed,  and  contained  of  and  concerning  the  same." 
The  trusts  were  to  receive  the  rents  and  pay  the  residue,  after  deduct- 
ing expenses,  to  her  sister  Mary  for  life,  for  her  separate  use,  as  there- 


454  RULE   AGAINST   PERPETUITIES  (Part  4 

in  mentioned,  and  after  her  decease  "upon  further  trust  to  pay  the  res- 
idue of  such  rents  to  her  oldest_xiliid  during  his^or  ,her  hfe,  and  after 
the  decease  of  such  oldest  child  to  the  next  oldest  child  during  his  or 
her  life,  and  so  on  in  siiccession  to  the  nexf^ldest  child  during  his  or 
her  life,  till  all  the  children  of  my  said  sister  Mary  shall  depart  this 
life,  and  from  and  after  the  decease  of  my  said  sister  Mary  and  all  her 
children  upon  further  trusts  to~pay  the~residu^e  ot  such  rents,  issues," 
and  profits"  to  the  testatrix's  sister  Eliza  for  life  for  her  separate  use 
as  therein  mentioned,  and  after  her  decease  to~pav  the  residue  to  her 
children  successively  in  the  same  way  as  to  Mary's  children.  "And 
from  and  after  the  decease  of  my  said  sisters  Mary  and  Eliza  and  all 
their  children,  upon  further  trusts  that  they,  my  said  trustees,  or  the 
survivors  of  them,  or  the  heirs  or  assigns  of  such  survivor  do  and 
shall  stand  seised  of  the  said  freehold  hereditaments  and  premises,  in 
trust  for  such  person  or  persons,  in  such  parts,  shares,  and  propor- 
tions, and  in  such  manner  and  form7~and  under  and  subject  to  such 
powers,  provisions,  directions,  limitations,  and  appointments  as  the 
longest  liver  of  them,  my  said  sisters  Mary  and  Eliza  and  their  chil- 
dren^hall,  notwithslahdmg  coverture,  by__any~deed  or  deeds,  JiTstru- 
ment  or  instruments  in  writing,  or  by  his  or  her  last^will  and  testa- 
ment in  writing,  or  any  codicil  or  codicils  thereto  to  be  respectively 
duly  executed  and  attested,  direct,  limit,  or  appoint,  give,  or  devise 
the  same,  and  in  default  of  any  such  direction,  limitation,  or  appoint- 
ment, gift  or  devise  then  upon  further  trust  of  the  same  freehold  here- 
ditaments and  premises  for  my  own  heir^aMaw  absolutely." 

The  testatrix  died  in  December,  1838.  Her  sister  Mary  died  in  1864, 
leaving  two  children  surviving  her,  one  of  whom  died  in  1871 ;  the 
other,  Hannah  Tatley,  lived  till  1889,  when  she  died,  leaving  a  will, 
made  in  1885,  by  which  she  appointed  this  property  to  a  trustee  in 
trust  for  her  children.     The  testatrix's  sister  Eliza  hacrdied~cHiTdless 

The  persons  on  whom  the  legal  estate  vested  in  the  trustees  of  the 
will  of  Hannah  Hargreaves  had  devolved  took  out  an  originating 
summons  to  have  it  decided  whether  the  trust  limitations,  to  take  ef- 
fect^jiterthe^  deaths  of^he  testatrix's  sisters  Mary  aiid'^iza  and  ~all 
their  children,  were  valid,  and  who  in  the  eventswhiclHTa^jiappened 
was  entitled  to  the_pro^perty!  TiTe  defendants  were  the  trustee  unBer 
the  wHl  of  Hannah  Tatley  and  the  person  who  claimed  under  the  heir- 
at-law  of  the  testatrix. 

ICay,  J.,  said  that  he  should  decline  to  hear  an  equitable  ejectment 
upon  an  originating  summons.     The  plaintiffs  appealed. 

Upjohn,  for  the  person  claiming  under  the  heir-at-law.  The  objec- 
tion was  not  taken  by  me,  but  by  Mr.  Justice  Kay,  and  I  submit  that 
the  court  had  jurisdiction.  The  property  being  very  small,  I  should 
be  glad  for  the  case  to  be  disposed  of  here,  without  incurring  further 
expense. 


Ch.  1) 


THE    RULE   AND   ITS   COROLLARIES 


455 


F.  Thompson,  for  the  appointee,  concurred  in  this.  The  case  then 
proceeded  on  the  merits. 

Cotton,  L.  J.  This  is  a  case  where  trustees  of  a  will  in  whom  the 
legal  estate  in  fee  is  vested,  and  who  are  in  possession  of  the  property, 
come  asking  to  have  a  decision,  to  whom,  according  to  the  true  con- 
struction of  the  will,  they  ought  to  hand  over  the  property.  It  would 
be  construing  Order  LV.,  rule  3,  too  narrowly  if  we  were  to  say  that 
they  cannot  raise  this  question  by  originating  summons.  The  ques- 
tion to  whom  the  beneficial  interest  in  the  property  now  belongs  turns 
upon  the  point  whether  the  power  ofappointment^given  by  thejyilLoI 
the  testatrix  is  voK!~tnr~fcnioteiTess7  The  limitation  to  the  sisters  for 
life~an(1~tTrTheir  children  for  their  lives  are  perfectly  good,  but  mjny 
opinion  the  power  to  appoint  isvoid  for  remoteness.  This  power  is 
giv"errto~the  last  siirvivor  of  the  sisters  and  their  children.  The  chil- 
dren niight  not  airUe  in  being  aTtEe"ireaflT  ofThe 'tesIaTrtxT  tfii  power, 
therefore,  is  noFgiven  to  a  person  who  mustliece"ssarily  be  ascertam- 
ed  within  the  period~allowed  bv""the  rtllFaganist  perpetuitTesT  On  the 
death  ot  the  last  survivmg  child  tTTe^eqlutabTe'estate  devolved  on  the 
heir-at-lavrbt  the  festsrtri^  not  uhder~tHe~Tr[rsrs  declared  by  her^^jTT; 
but  as  on  a  parllal  intestacy,  occas"iohecrb}rThe'Tailure  of  the  ulterior 
trust! 

Tmust  say  a  few  words  as  to  Avern  v.  Llovd.  Law  Rep.  5  Eq.  383, 
which  is  very  like  the  present  case.  The  Vice-Chancellor  there  says 
that  as  there  may  be  a  limitation  of  valid  life  estates  to  the  unborn 
children,  why  may  there  not  be  this  ultimate  limitation  after  their  de- 
termination ?  No  doubt  there  may,  if  it  is  limited  to  a  person  who  is 
necessarily  ascertainable  within  the  prescribed  period.  ltis_yery  true 
that  after  the  decease  of  the  tenants  for  life  the  children  could  have 
disposeci-of  thTTr  interests,  vested  and_contingent7so  that_(apaFt  irom 
the  quesTKDif'orthe~vaIiHIty'^o^  limitations)  the  estatemighthaye 
beefTdisposed  ot  as  soon  as  the  tenants  tor  lite  were  dead,  anclTt  may 
be  contended  that  as  the  alieiiation  of  the  estate  is  not  prevented  the 
case  iTnof  withm  the  rule  as  to'remofenessTy  But  that  is  not  the  frue 
An  executoryTimitation  to  take  effect  on  tFe 


wav  of  lookml 

happening  of  an  event  which  may  not  take  place  within_a^life  in  beings 
and  twenty-one  vears,  is  not  made  valid  by  the^fact  that  the  person  in 
whoseJavorjTlsISiaxlecaTrT^kTBeTL  ^' 

LiNDLEY,  L.  J.  I  am  of  the  sanie^opinion.  Mr.  Justice  Kay  could 
not  have  decided  the  question  of  jurisdiction  as  he  did  if  there  had  not 
been  some  misapprehension  as  to  the  nature  of  the  case.  A  trustee 
has  got  the  estate  in  his  hands,  and  asks  the  court  to  tell  him  what  he 
is  to  do  with  it.  There  may  be  complicated  cases  where  a  judge  may 
say :  "I  cannot  safely  decide  such  a  question  as  this  in  a  summary 
way;  you  must  proceed  by  action,"  but  there  is  clear  jurisdiction  to 
decide  such  a  question  on  summons. 

As  to  the  merits,  the  person  who  is  to  exercise  this  power  is  not 


456 


RULE   AGAINST   rERPETUITIES 


(Part  4 


necessarily  ascertainable  within  the  period  allowed  by  the  rule  against 
perpetuities,  and  the  power  therefore  is  void.  If  Avern  v.  Lloyd,  Law 
Rep.  5  Eq.  383,  had  been  followed  in  other  cases  "there  would  have 
been  a  difficulty,  but  that  case  had  not  been  followed,  and  I  do  not 
tUink  thatjtjyas  rightly~deci(IeH"!  -  "  ^ 

LoPEs7ir"X  niTso~arn  of  opinion  that  this  case  comes  within  the 
words  and  the  spirit  of  Order  LV.,  rule  3,  and  that  Mr.  Justice  Kay 
had  jurisdiction  to  decide  the  question  on  originating  summons.  As 
regards  the  construction  of  the  will,  I  am  also  of  opinion  that  the  ul-_ 
tejiuijmiitations  are  void  because  the  person  to  exercise  the  power 
would^HoTnecesSiaillylje  ascertained  within  a  life  in  being  and  twenty- 
one  years.  "^  "  ^ 


WHITBY  V.  MITCHELL'. 

(Court  of  Appeal,  1S90.     44  Ch.  Div.  85.) 

By  articles  dated  the  4th  of  November,  182  L  made  shortly  before 
the  marriage  of  Charles  Dennis  and  Mary  Elizabeth  Maddy,  it  was 
agreed  that  upon  the  marriage  a  settlement  should  be  made  of  certain 
lands  to  w^hich  Charles  Dennis  was" entitled  in  fee  simple." 

Bv  a  settlement  made  in  pursuance  of  the  articles,  and  dated  the  7th 
of  May,  1840,  the  lands  were  rrmypyed  fo  the  trustees  and  theirjieirs^ 
to  the  use  of  Charles  Dennis  fqr_life,  with  a  limitation  to  trustees  to 
supp.oi:t  con_tingent.j;emainders,  with  reniainder  to  the  use  of  Alary^ 
Elizabeth_pennis  for_her  life,  with  a  like  limitation  to  support  con- 
tingent remainders,  with  remainder  after  the  decease  of  tlie  survivor 
of  Charles  and_Mary  Elizabeth  Dennis,  "to  tHe_use  of  a  child7^ran(I- 
clijld,  or  more  remoTe^lssue,  ^r~all~aiid  every  or  any  one  or  moreoT 
the  children,  grandchildren,  or  more  remote  issue  of  the  said  Charles 
Dennis  \^y  the  ^aid  Mary^  Elizabeth  his  wife,  such  child,  grandchil- 
dren, or  more  remote  issue  being  born  before  any  such  appointment 
as  hereinafter  is  mentioned  shall  be  made  to  him,  her,  or  them  respec- 
tively, for  such  estate  or  estates,  interest  or  interests,  and  in  such 
parts,  shares  and  proportions  (if  more  than  one),  and  with  such  limita- 
tions over,  such  limitations  over  being  for  the  benefit  of  some  or  one 
of  the  objects  of  this  present  power,  and  in  such  manner  and  form,  as 
the  said  Charles  Dennis  and  Mary  Elizabeth  his  wife"  should  by  deed 
appoint,  and  indefault  of  appointmeiit,  to  the  use  of  the  child  or  chil- 
dren of  Charles  ancI_AlaryjEHzabeth JDennis  equally  as  tenants  in 
common,  aQd^thelieirs  and  assigns  of  the  same  child  or  children  re- 
spectively, withaTirnitationTover  in  case~"any  of  such  children  should 
die  under  twenty-one  w'ithout  leaving  issue.  The  settlement  contained 
the  usual  power  of  sale,  and  directions  for  investment  of  the  proceeds 

13  Tlie  statement  of  faots  is  taken  mainly  from  tlie  report  of  the  case  be- 
fore Kay,  J.,  42  Ch.  D.  494. 


Ch.  1)  THE    RULE   AND   ITS   COROLLARIES  457 

in  the  purchase  of  land,  and  for  interun  investment  thereof  until  a 
purchaser  could  be  found. 

Charles  and  Mary  Elizabeth  Dennis  had  only  two  children,  viz., 
Emily  Hyde  Dennis  (who  afterwards  married  one  Burlton)  and  anoth- 
er daughter.  Both  children  were  born  before  the  date  of  the  settle- 
ment of  1840. 

By  an  indenture  dated  the  15th  of  March,  1865,  Charles  and  Mary 
Elizabeth  Dennis  appointed  that  one  moiety  of  the  lands  comprised  in 
the  indenture  of  the  7th  of  JMay,  1840,  or  the  proceeds  of  sale  thereof, 
should,  after  the  decease  of  the  survivor  of  them,  go  and  remain  to  the 
use  of  Egiily  Hyde  Burlton  for_life,  for  her  sole  and  separate  use, 
without  power  of  anticipation,  and  after  her  decease,  to  the  use  of  such 
person  or  persons  as  she  should  by  wdj_oi^_codicil  ap:poiiit.  and  in  de- 
faulfof  appoint mcnt_to  the  use  ol  the  children  of  Emily^yde  Burlton^ 
liviiig  at  the  date  of  that  indenture  and  their  heirs  equally  as  tenants 
in  common,  with  a  gift  over  in  case  all  such  children  shotild  die  un- 
der  twenty-one  without  leaviiig  issue. 

A  similar  appointment  was  also  made  by  Mr.  and  Mrs.  Dennis  in 
favor  of  their  other  daughter,  her  children  and  appointees. 

Kay,  J.,  held  that  the  appointment  was  invalid  so  far  as  it  affected 
to  restrain  Emily  Hyde  Burlton  from  anticipation,  and  to  give  her  a 
testamentary  power  of  appointment,  and  to  give  the  property  in  de- 
fault of  appointment  to  her  children. 

The  three  children  of  Emily  Hyde  Burlton  appealed. 

Cotton,  E.  J.  This  is  an  appeal  from  a  decision  of  Mr.  Justice  Kay 
declaring  that  certain  limitations  treated  as  introduced  into  an  ante- 
n u ptial  settlement  by  virtue  of  a  post-nujjtial  appointment  under  a 
power  contained  in  the  settlement,  being  limitations  of  legal  estate!^. 
were  void,  not  on  the  grounTTlhat  thev  \vere  void  for  remoteness  but 
that  they  were  limitations  which  the  law  does  not  allow  of  legal  es- 
tates. Now,  wTiat  are  these  limrEatTons?  First,  there  is  a  limitation 
of  a  legal  estate  to  an  unborn  child  of  the  marriage  for  life,  amrtlTen^ 
after  that,  there  is  a  limitation  to  the  children  of  that  unborn_chil(j.. 
It  IS  said  that  this  latter  limitaTloli  dues  not  come  within^the  rule 
against  perpetuities,  and  that  there  is  no  other  rule  preventing  this 
limitation  from  being  good.  Mr.  Justice  Kay  has  decided,  and  in  my 
opinion  rightly,  that  there  is  a  rule  in  existence  which  does  prevent 
the  limitation  from  being  good,  namely,  that  you  cannot  have  a  pos- 
sibility  upon  a  possibility ;  or,  to  state  the  rule  in  a  more  convenient 
form,  tlTaryou  cannbtjiave  a  limitation  toFthe  life  of  an  unborn  per- 
son^^itK'a'limitation  afteFhjs  death  to  his  unborn  chiiciren  tO  take  as" 
purchaseTs!  Th"St  isTHe  same  thing  as  what  has  been  caliea  "a  possi-' 
biHty  upo1t\  a  possibility." 

But  it  is  said  that,  although  there  is  such  a  rule  in  existence,  that  is 
superseded  by  the  more  modern  rule  against  perpetuities.  In  my 
opinion  the  old  rule  with  regard  to  a  possibility  on  a  possibility  has"" 


458  RULE   AGAINST   PERPETUITIES  (Part  4 

not  been  done  away  with  by  this  modern  rule.  It  is  conceded  that 
tlie  rule  against  a  possibility  upon  a  possibility  existed  loiig;  before 
the_nik  prohibiting  the  limitations  of  estates  tending _to_a_perp£tuity 
existed.-  Can  we  say  that  the  old  rule  has  been  put  an  end  to  or  su- 
perseded? Mr.  Joshua  Williams  lays  it  down  that  the  rule  still  ex- 
ists ;  while  other  t"ext^^writers  say  it  does  not  exist.  In  this  difference 
of  opinion  we  must  see  what  aid  we  can  obtain  "from  judges  and  oth- 
ers in  high  position.  First  of  all,  we  have  Butler's  note  to  Fearne — 
and  the  same  thing  is  expressed  in  the  works  of  other  writers — to  the 
effect  that  the  rule  of  law  against  double  possibilities  is  a  rule  still  ex- 
isting, prohibiting  limitations  of  estates  in  such  a  way  as  That"  aP 
though  they  may  not  offend  against  the  rule  of  perpetuities,  they  are 
bad  as  being  objectionable  to  the  law.  Then  Lord  Kenyon,  referring 
to  that  point  in  Hay  v.  Earl  of  Coventry,  says' (3  T.  R.  86) :  "It  is  not 
necessary  for  me  to  say  what  effect  that  would  have  had  in  the  present 
case,  if  that  point" — that  is,  whether  an  estate  for  life  could  be  given 
to  unborn  issue — "had  remained  undecided ;  because  the  law  is  now 
clearly  settled  that  an  estate  for  Hfe  may  be  limited  to  unborn  issue, 
provided  the  devisor  does  not  go  farther  and  give  an  estate  in  succes- 
sion to  the  children  of  such  unborn  issue."  It  is  said  that  only  meant 
that  a  limitation  to  the  children  of  unborn  issue  generally,  without 
any  Hmit  as  to  the  time  within  which  such  children  should  be  born, 
would  oft'end  against  the  rule  of  perpetuities ;  but  in  my  opinion  Lord 
Kenyon  was  referring  to  the  old  rule  against  double  possibilities,  jt. 
is  clear,  in  my  opinion,  that  the  rule  under  which  Mr.  Justice  Kay  has 
decided  tliiscasejsamlejwhich_^  still  subsisting  long 

after  the~rule  against  perpetuities  had  been  crystallized  and  laid^bwn 
in  definite  and~distinct  terms. 

Then^"again,  in  Monypenny  v.  Bering,  2  D.  M.  &  G.  145,  Lord  St. 
Leonards  says  (p.  170) :  "Then  the  rule  of  law  forbids  the  raising 
ofsuccessive  estates  by  purchase  to  unborn  children,  that  is,  to  an 
unborn  child  of  an  unborn  child.  With  this  rule  I  have  never  meant 
to  interfere,  for  it  is  too  well  settled  to  be  broken  in  upon."  Accord- 
ing to  the  argument  addressed  to  us  on  behalf  of  the  appellants  that 
old  rule  has  been  superseded  by  the  modern  rule  against  perpetuities ; 
but  here  we  have  Lord  St.  Leonards  trpatiTTff_if  ag  Qtill  «;n1-><;i<;fing  in 
1852. "  ■ 

Then  we  have  besides,  Butler's  note  to  Fearne  (10th  ed.  vol.  i.  p. 
565,  n.),  in  which  he  lays  down  what  he  takes  to  be  the  law — that 
there  was  no  decision  superseding  the  old  rule.  He  says  this :  "The 
cases  of  a  possibility  upon  a  possibility  may  be  considered 'as  excep- 
tions from  the  rule.  They  proceeded  on  a  different  ground,  and  gave 
rise  to  this  important  rule,  that,  if  land  is  limited  to  an  unborn  person 
during  his  life,  a  remainder  cannot  be  limited  so  as  to  confer  an  estate 
by  purchase  on  that  person's  issue."  He  there  quite  treats  it  as  the 
true  rule  still  subsisting.     And  then  we  have  a  statement  by  Burton, 


Ch.  1)  THE   RULE   AND   ITS   COROLLARIES  459 

in  his  Compendium  (7th  ed.  p.  255),  showing  that  he  did  recognize 
clearly  that  the  old  rule  was  still  subsisting.  He  says :  "Life  estates^ 
may  by  la\v_be_given  jn  succession  to  any  number  of  persons  in  exist^ 
ence,  and  ulterior  estates  in  succession  to  their  children  yet  unborn. 
*  "*  *  But  no  remaindef  can  be  given  to  the  child  of  a  person  who 
is  not  in  existenc£." 

Therefore,  although  very  ingenious  and  learned  arguments  have 
been  addressed  to  us  to  show  that  the  old  rule  has  been  superseded 
and  put  an  end  to,  it  is,  in  my  opinion,  well  established  that  the  rule 
is  still  in  existence. 

There  is  a  passage  in  Lord  St.  Leonards'  judgment  in  Cole  v.  Se- 
well,  4  D.  &  War.  1,  32,  in  which  he  speaks  of  the  rule  as  being  obso- 
lete, but  he  nowhere  lays  down  that  the  rule  is  no  longer  existing. 
He  only  means  that  the  rule  is  no  longer  necessary  to  be  referred  to 
because,  through  the  introduction  of  shifting  uses  and  executory 
devises,  the  law  is  now  governed  rather  by  the  rule  against  perpetui- 
ties. When  j\Ir.  Marten  referred  us  to  Sugden  on  Powers,  I  referred 
him  to  the  opinion  expressed  by  the  learned  author,  when  sitting  as 
Lord  Chancellor,  in  Alonypenny  v.  Bering,  2  D.  AL  &  G.  145,  170,  in 
the  passage  which  I  have  read,  and  which  shows  he  did  not  consider 
the  old  rule  to  have  been  abrogated.  In  my  opinion  the  decision  of 
Mr.  Justice  Kay  is  right. 

LiNDLEY,  L.  J.  I  entertain  no  doubt  myself  that  Mr.  Joshua  Wil- 
liams' observations  on  this  subject  are  correct  from  beginning  to  enri, 
and  i  do  not  know  that  I  could  express  my  views  better  than  he  did. 
I  do  not  know,  any  more  than  he  seems  to  have  done,  the  exact  mean- 
irig  of  the  old  rule  as  to  a  possibility~upon  a  possibility;  and  if  any 
one  turns  to  the  passage  in  Coke  upon  Littleton  where  it  is  discussed, 
I  hope  he  will  understand  it  better  than  I  do.  I  confess  I  do  not 
understand  it  now,  and  never  did.  But,  al_aJl_events^Lit  j^ave.jis£_ta_ 
tlie  rule  which  everyone  can  understand,  and  which  is  expressed  hy^ 
Butler  in  the  note  to  Fearne,  where  he  say s  t hat' 'the  cases  of  a  pos- 
sibility upon  a  possibility  *  *  *  gave  rise  to  this  important  rule, 
thaJLiLland  is  limited  to  an  unborn  person  during  his  life^  a  remain- 
der cannot  be  limited,  so  as  to  confer  an  estate  by  purchase  on  that 
person  s  issueT'  That  is  intelligible  ;  and  there  are  other  passages  on 
pages  502  and  503  showing  this  was  the  author's  settled  opinion. 

I  have  always  understood  that  to  be  the  settled  rule  of  law,  and  I  am 
not  aware  of  any  decision  or  dictum  which  in  any  way  impugns  it. 
But  it  is  said  that  the  old  rule  became  obsolete,  or  merged  or  confused 
in  tjie^raorjeZmpdern  law  ot  perpetuities?  Butler,  however,  shows  tjiat 
this  is  a  mistake.  The^  rule  against  perpetuities  was  invented  much 
later,  on  account  of  the  law  of  shiftinguses  and  executory  devises. 
When  sTuTting  uses  and  executory  devises  were  invented  it  became 
necessary  to  impose  some  limit  upon  them,  and  the  doctrine  of  per- 
petuities has  arisen  from  that  necessity.     The  old  rule  against  double 


460  RULE   AGAINST   TERrETUITIES  (Part  4 

possibilities  is  a  rule  that  has  not  been  abrogated,  and  it  is  founded  on 
very  good  sense;  because  it  is  not  desirable  that  land  should  be  tied 
up  to  a  greater  extent  than  that  allowed  by  the  rule.  So  far  from 
supporting  ingenious  devises  for  tying  up  land  longer,  the  time  has 
long  gone  by  for  that ;  and,  as  the  law  is  against  the  appellant's  con- 
tention, in  my  opinion  the  appeal  should  be  dismissed. 

Lopes,  L.  J.  That  there  was  an  old  rule  that  an  estate  could  not  be 
limited  to  an  unbo"rn  cTiild^  of  an  unborn  person  has  been  admitted', 
aiidT^h  fact,  cannot  be  denied.  It  was  an  old  rule  originating  out  of 
the  feudal  system.  But  it  is  said  that,  although  this  old  rule  did  once 
extstrit  TTas^been  superseded  by  the  rule  against  perpetuities.  No 
direct  authority  has  been  cited  for  any  such  contention,  nor  can  any 
such  authority  be  found.  Counsel  have  referred  to  certain  dicta  by 
text-writers  of  more  or  less  doubtful  import ;  but  as  early  as  the  year 
1789  that  old  rule  was  recognized  as  existing  by  Lord  Kenyon  in  Hay 
V.  Earl  of  Coventry,  3  T.  R.  83 ;  and  again,  in  1852,  it  was  recognized, 
in  Monypenny  v.  Bering,  by  so  great  an  authority  as  Lord  St.  Leon- 
ards. Thus,  in  1789  and  1852,  that  rule  was  recognized, — that  is  to 
say,  at  a  time  when  the  rule  against  perpetuities  was  in  existence. 

I  have  no  doubt,  therefore,  that  these  are  two  independent  and_ co- 
existing rules.  The  rule  against  perpetuities  originated  alTd^wasren- 
dered  necessary  on~account^of  tITe~mtr6ductr6iroT  executory  devises 
and^pnhgihg  uses, ''against  which  the  old  rule  would  have  been  an 
insuTITaenrpr  ofe  cTi  oii:  "" 

T^am  clearly  oFopinion  that  the  decision  of  Mr.  Justice  Kay  was 
right,  and  that  the  appeal  should  be  dismissed.^* 

1*  The  rule  of  Whitby  v.  Mitchell  does  not,  however,  apply  to  limitations  of, 
personal  property.— nrTeTBowIesrii.ll.  [1902]  2"CE.~^Cf: 


Ch.  2)  INTERESTS  SUBJECT   TO   THE  RULE  4G1 

CHAPTER  II 
INTERESTS  SUBJECT  TO  THE  RULE 


LONDON  &  S.  W.  RY.  CO.  v.  GOMM. 

(Chancery  Division  and  Court  of  Appeal,  1882.     20  CTi.  Div.  562.) 

By  an  indenture,  dated  the  10th  of  August,  1865,  made  between  the 
plaintiffs,  the  London  and  South-Western  Railway  Company,  of  the 
one  part,  and  George  Powell  of  the  other  part,  after  reciting  that  the 
plaintiffs  were  seised  of  the  fee  simple  and  inheritance  of  the  piece  or 
parcel  of  land  and  hereditaments  intended  to  be  thereby  conveyed, 
"which  being  no  longer  required  for  the  purposes  of  their  raihvay," 
they  had  contracted  to  sell  to  the  said  George  Powell  (who  was  the 
adjoining  owner  thereto),  at  the  sum  of  ilOO,  subject  to  the  conditions 
thereinafter  contained,  the  company  conveyed  to  Powell  in  fee  the 
piece  of  land  in  question,  being  a  small  piece  of  land  situate  near  theTr 
Brentford  Station.  And  Powell  thereby,  for  himself,  his  heirs,  execu- 
tors, administrators,  and  assigns,  covenanted  with  the  plaintiffs,  their 
successors,  and  assigns,  that  he,  the  said  G.  Powell,  his  heirs  and  as- 
signs, owner  and  owners  for  the  time  being  of  the  hereditaments  in- 
tended to  be  thereby  conveyed,  and  all  other  persons  who  should  or 
might  be  interested  therein,  should  and  would  at  any  time  thereafter 
(whenever  the  said  land  miglit  be  required  for  the  railway  or  works 
of  the  company)  whenever  thereunto  requested  bv  the  company,  their 
successors  or  assigns,  by  a  six  calendar  months'  previous  notice  in 
writing,  to  be  left  as  therein  mentioned,  and  upon  receiving  from  the 
company,  their  successors  or  assigns,  the  said  sum  of  £100  without 
interest,  make  and  execute  to  the  company,  their  successors'  and  as- 
signs, at  the  expense  of  the  company,  a  reconveyance  of  the  said 
hereditaments  free  from  any  encumbrances  created  by  the  said  G. 
Powell,  his  heirs  or  assigns,  or  any  persons  claiming  under  or  in 
trust  for  him  or  them. 

The  ten  years  limited  by  the  127th  section  of  the  Lands  Clauses 
Consolidation  Act,  1845,  had  expired  in  1862,  but  the  company  had 
still  power  of  purchasing  land  in  this  neighborhood  by  agreement. 

The  premises  comprised  in  the  above  indenture  were  in  the  year 
1879  sold  and  conveyed  along  with  other  property,  by  the  son  of 
George  Powell  to  the  defendant,  who  had  full  notice  of  the  provisions 
of  the  deed  of  August,  1865.  Uninterrupted  possession  of  the  land 
had  been  had  by  George  Powell  and  his  successors  in  title  ever  since 
the  purchase  in  1865. 


462  RULE  AGAIXST  PERPETUITIES  (Part  4 

On  the  12th  of  March,  1880,  the  company  gave  notice  in  writing  to 
the  defendant  claiming  to  repurchase  the  property~under  the  provi- 
sion in  the  deed  of  AugustrT865.  The  defendant  refused  to  recon- 
vey,  upon  which  the  company  commenced  their  action,  alleging  that 
the  land  in  question  was  required  for  the  purposes  of  their  undertak- 
ing, and  for  the  improvement  of  their  railway  and  works,  and  claimed 
specific  performance  of  the  covenant  in  the  deed  of  1865. 

The  defendantT)y  his  defence  alleged  that  he  had  purchased  this 
land  in  the  year  1879  after  the  death  of  G.  Powell,  and  long  after  the 
period  limited  by  the  Lands  Clauses  Consolidation  Act  and  other 
Acts  under  which  the  plaintiffs  were  incorporated  for  the  absolute 
sale  and  disposal  by  them  of  all  superfluous  lands  had  expired,  and 
that  all  estate  and  interest  of  the  plaintiffs  in  the  said  lands  had  be- 
come vested  in  the  adjoining  owner  when  the  defendant  so  purchased. 
That  the  condition  or  covenant  in  the  deed  of  August,  1865,  if  and  so 
far  as  the  same  purported  to  bind  the  land  in  the  hands  of  succeeding 
owners,  or  to  bind  succeeding  owners,  was  invalid,  but  if  valid  had 
ceased,  and  was  at  an  end  before  the  defendant  purchased. 

At  the  time  when  the  company  gave  their  notice  to  purchase  this 
land  from  the  defendant  they  had  no  compulsory  power  of  purchasing 
land  in  that  neighborhood,  but  under  the  London  and  South-Western 
Railway  Act,  1863  (26  &  27  Vict.  c.  xc),  §  94,  and  the  London  and 
South-Western  Railway  (General)  Act,  1868  (31  &  32  Vict.  c.  Ixix.),  § 
23,  and  others  of  their  Acts,  they  still  had  power  to  purchase  lands  by 
agreement,  under  which  this  land  might  have  been  purchased  if  the 
defendant  had  been  willing  to  sell  it. 

The  action  now  came  on  for  trial,  and  several  engineers  of  the  plain- 
tiffs were  examined  as  witnesses,  who  proved  that  the  land  in  question 
was  now  required  by  the  company  for  the  purpose  of  extending  the 
works  connected  with  the  station  at  Brentford,  and,  further,  that  in 
the  year  1865,  when  the  land  was  conveyed  to  G.  Powell,  there  was  a 
great  probability  that  at  some  future  period  it  would  be  so  required. 

The  action  came  on  to  be  heard  before  Mr.  Justice  Kay  on  the  28th 
of  November,  1881. 

1881,  Dec.  2.  Kay,  J^.  after  stating  the  effect  of  the  deed  of  the 
10th  of  August,  IS65,  continued : 

The  defendant  is  an  assignee  of  Powell  with  notice  of  the  covenant. 
On  the  12th  of  March,  1880,  notice  was  given  that  the  railway  com- 
pany required  the  land.  The  defendant  refusing  to  convey,  this  action 
was  commenced  on  the  22d  of  November,  1880,  for  specific  perform- 
ance of  the  covenant. 

In  opposition  to  the  claim  it  is  insisted : 

1.  That  the  arrangement  was  ultra  vires  and  void. 

2.  That  the  covenant  to  reconvey  is  void  as  tending  to  a  perpetuity. 

3.  That  the  land  is  not  required  for  the  purposes  of  the  railway. 

On  the  last  point  I  am  satisfied  by  the  evidence  of  the  company's 
engineers,  which  according  to  Stockton  and  Darlington  Railwav  Com- 


Ch.  2)  INTERESTS   SUBJECT   TO   THE   RULE  463 

pany  v.  Brown,  9  H.  L.  C.  246,  and  Kemp  v.  South-Eastern  Railway 
Company,  Law  Rep.  7  Ch.  364,  is  conclusive,  that  the  land  is  bona  fide 
required  for  purposes  within  sect.  45  of  the  Railways  Clausei~Cbn- " 
solidation  Act. 

By  their  special  Act  of  1863,  the  company  had  in  1865  power  to  pur- 
chase this  land  for  such  purposes,  and  that  power  still  exists  under 
ail  Act  obtained  by  them  in  1868. 

But  it  is  argued  that  this  was  in  1865  superfluous  land,  and  ought 
tlien  to  have  been  sold  absolutely  to  Powell  as  the  adjoining  owner, 
and  that  this  being  a  conditional  sale  was  void.  I  am  satisfied  by  the 
evidence  that  though  not  wanted  at  the  time,  there"  was  in  1865  a 
strong  probability  that  this  land,  which  immediately  adjoins  the  com- 
pany's station  at  Brentford,  would  be  required  eventually,  and  there- 
fore a  prospective  contract  to  purchase  was  I  think  within  the  powers 
of  the  company:  Kemp  v.  South-Eastern  Railway  Company;  Hooper 
V.  Bourne,  5  App.  Cas.  1.  And  it  seems  to  me  that  the  true  effect  of 
the  transaction  in  1865  was  not  a  conditional  sale,  but  a  sale  out  and 
out  to  Powell,  with  a  personal  contract  by  him  to  reconvey  when 
called  on  at  a  certain  price.  Probably  the  price  he  had  to  pay  was 
considerably  less  by  reason  of  this  covenant,  and  if  the  transaction 
was  ultra  vires,  the  proper  thing  to  do  would  be  to  set  the  sale  aside 
altogether,  in  which  case  the  land  ought  to  be  reconveyed  on  payment 
back  of  the  purchase-money.  But  I  do_riot_think  it  was  a  transaction 
beyond  tlTe_£mvers  of  the  companv. 

I'he  reiTiaining  question  is,  whether  this  covenant  is  void  as  tending 
to  a  perpetuity. 

""ijpuir  Lhi^ranch  of  the  argument  two  cases  were  referred  to.  The 
first  of  these  is  Gilbertson  v.  Richards,  4  H.  &  N.  277;  5  H.  &  N. 
453.  '  ^ 

In  that  case  one  Billings,  being  entitled  to  the  fee  simple  of  certain 
lands,  agreed  to  sell  them  subject  to  the  payment  by  the  purchaser  to 
him  of  £40  a  year,  for  which  he  was  to  have  a  power  of  distress.  Then 
he  and  the  purchaser  mortgaged  the  property  by  a  deed  which  con- 
tained a  proviso  that  if  the  mortgagee,  or  any  one  claiming  under  him, 
should  ever  enter  into  possession  the  premises  should  thenceforth  be 
charged  w'ith  the  payment  to  Billings,  his  heirs  and  assigns,  of  the 
annual  sum  of  £40.  It  was  argued  that  this  was  void  for  remoteness. 
That  argument  was  answered  by  Baron  Martin,  thus :  "The  second 
objection  was  that  it  was  void  for  remoteness ;  that  it  was  to  arise  at 
any  time,  however  distant,  when  the  parties  of  the  fourth  part,  or 
their  heirs,  might  enter  into  the  land  and  therefore  might  arise  long 
after  the  time  prescribed  by  law  against  perpetuity.  It  is  quite  true 
that  no  rent  can  be  lawfully  created  which  violates  the  law  against 
remoteness,  and  therefore  a  rent  could  not  be  granted  to  the  son  of 
an  unborn  son.  But  it  seems  to  be  an  error  to  call  this  rent  a  per- 
petuity in  an  illegal  sense.  It  is  vested  in  Thomas  Billings  and  his 
heirs.    He  or  his  heirs  may  sell  it  or  release  it  at  their  pleasure.    A 


464  RULE   AGAINST   TERrETUITIES  (Part   4 

rent  in  fee  simple  may  be  granted  to  a  man  and  heirs  to  continue  for- 
ever. Why,  therefore,  may  not  one  be  granted  to  commence  at  any 
time,  however  remote?  It  is  only  a  part  of  the  estate  in  fee  simple 
of  the  rent.  A  perpetuity  arises  when  a  rent  is  granted  to  a  person 
who  may  not  be  in  esse  until  after  the  line  of  perpetuity  be  passed, 
but  when  the  estate  in  the  rent  is  vested  in  an  existing  person  and  his 
heirs  in  fee  simple,  who  may  deal  with  it  at  his  or  their  pleasure  and 
as  he  or  they  think  fit,  we  think  it  is  not  subject  to  the  objection  of 
remoteness,  notwithstanding  that  its  actual  enjoyment  may  depend 
upon  a  contingency  which  may  never  happen,  or  may  happen  at  any 
time  however  distant.  For  these  reasons  we  think  the  rent  was  well 
created,  and  that  the  distress  for  it  was  lawful."  In  the  Exchequer 
Chamber  the  same  objection  having  been  passed,  was  thus  answered 
by  Mr.  Justice  Wightman,  who  delivered  the  judgment  of  the  court : 
"The  only  question  which  remained  for  consideration  was  whether 
the  second  objection,  founded  on  the  law  against  perpetuities,  was 
available  in  this  case,  and  we  are  of  opinion  that  it  is  not.  We  think 
that  this  rent  is  not  liable  to  the  objection  as  to  perpetuity.  The  real 
efifect  of  the  liinitations  in  the  deed  before  us  is,  that  the  mortgagees 
are  to  take  possession  or  sell,  subject  to  the  payment  of  this  rent  to 
Billings.  It  is  a  restriction  on  the  amount  of  tlie  estate  of  the  mort- 
gagees,  and  seems  within  the  cases  as  to  The  power  of  sale  in  a  mort- 
gagee v\diicTT7~aTtncMent^1xriTiF''gstate,  "IS  held  noFto  be  within  the 
rule  as  to  perpetuities.  There  may  be  considerable  doubt  also  on  the 
point  raised  by  counsel,  whether  the  rule  as  to  perpetuities  applies  to 
a  case  like  the  present,  where  the  party  who  or  whose  heirs  are  to 
take,  is  ascertained,  and  who  can  dispose  of,  release,  or  alienate  the 
estate  either  at  common  law,  or  at  all  events,  since  the  passing  of  the 
8  &  9  Vict.  c.  106,  §  6." 

The  section  of  the  Act  referred  to  is  that  which  enables  a  con- 
tingent executory  and  a  future  right  and  a  possibility  coupled  with  an 
interest  in  any  hereditaments,  whether  the  object  be  ascertained  or 
not,  to  be  disposed  of  by  deed.  Before  that  Act  such  interest  could 
be  released  when  the  person  contingently  entitled  was  ascertained. 

Lord  St.  Leonards,  in  the  8th  edition  of  his  treatise  on  Powers,  at 
page  16,  thus  comme'hts  on  that  decision.  Pie  cites  the  language  of 
Baron  Martin  thus :  "A  rent  in  fee  simple,  the  court  said,  may  be 
granted  to  a  man  and  his  heirs  to  continue  forever.  Why  therefore 
may  not  one  be  granted  to  commence  at  any  time  however  remote? 
It  is  only  a  part  of  the  estate  in  fee  simple  of  the  rent.  A  perpetuity 
arises  when  a  rent  is  granted  to  a  person  who  may  not  be  in  esse  until 
after  the  line  of  perpetuity  be  passed ;  but  when  the  estate  in  the 
rent  is  vested  in  an  existing  person,  and  his  heirs  in  fee  simple,  who 
may  dealwith  it  at  his  or  their  pleasure,  it  is  not  subject  to  the  objec- 
tion of  remoteness,  notwithstanding  that  its  actual  enjoyment  may  de- 
pend upon  a  contingency  which  may  never  happen,  or  may  happen  at 
any  time,  however  distant.    This,"  said  Lord  St.  Leonards,  "is  an  im- 


Ch.  2)  INTERESTS   SUBJECT   TO   THE   RULE  465 

portant  distinction  in  the  law  of  perpetuity,  but  it  was  not  necessary 
for  the  decision  of  the  case.  No 'perpetuity  was  created  by  the  power 
of  sale  in  the  mortgagees  or  by  the  right  of  them  or  their  heirs  to 
take  possession  of  the  land,  but  in  exercising  that  right  they  took, 
subject  to  a  perpetual  rent  of  £40  a  year  in  favor  of  the  mortgagor. 
It  was  a  charge  on  the  estate  and  had  no  tendency  to  a  perpetuity." 

From  this  it  seems  to  me  that  Lord  St.  Leonards  did  not  agree 
with  the  reason  for  the  decision,  but  thought  it  could  be  supported 
upon  the  ground  that  the  exercise  of  the  powers  of  sale  and  e'ntry  by 
a  mortgagee  not  being  obnoxious  to  the  rule  against  perpetuities,  nei- 
ther could  a  condition  appended  to  the  exercise  of  these  powers  be  so. 

The  dictum  at  the  end  of  the  judgment  in  the  Exchequer  Chamber 
he  does  not  seem  to  notice. 

The  other  case  cited  to  me  is  Birmingham  Canal  Company  v.  Cart- 
wright,  11  Ch.  D.  42L  There  a  right  of  pre-emption,  unlimited  m 
pomfof  time,  was  contracted  to  be  given.  The  learned  judge  in  that 
case  cited  the  passages  from  the  judgments  in  Gilbertson  v.  Richards, 
4  H.  &  N.  277,  which  I  have  referred  to,  and  stated  his  own  opinion 
thus  :  "The  next  question  arises  upon  the  terms  of  the  covenant  giving 
the  right  of  pre-emption — whether  or  not  that  right  is  obnoxious  to 
the  rule  against  perpetuities.  In  my  opinion  the  covenant  is  not  in  any 
way  liable  to  that  objection.  I  think  that  \yherever  a  right  or  interest 
is  presently  vested  in  A.  and  his  heirs,  although  the  right  may  not 
arise  until  the  happening  of  some  contuigency  which  may  not  take 
effect  \viTtrifr  tlie  period  defined  by  the  rule  against  perpetuities,  suctr~ 
right"  or  inieresrTs  hot  obnoxious~toTlrat  ruler  and  for  this  reasonT"- 
The  rule  is  aimed  at  preventing  the  suspension  of  the  power  of  deal- 
ing  witIT~prb£erfy-3-the  alienation  oflaiid  or'  other  property!  Blit, 
wlieh  there  Ts  a  present  right  of  that  sort,  although  its  exercise  may  be 
dependent  upon  a  future  contingency,  and  the  right  is  vested  in  an 
ascertained  person  or  persons,  that  person  or  persons,  concurring 
with  the  person  who  is  subject  to  the  right,  can  make  a  perfectly  good 
title  to  the  property.  The  total  interest  in  the  land,  so  to  speak,  is 
divided  between  the  covenantor  and  the  covenantee,  and  they  can  to- 
gether at  any  time  alienate  the  land  absolutely.  I  think  that  Gilbert- 
son  v.  Richards  is  a  distinct  authority  in  favor  of  that  conclusion." 

I  need  not  say  that  after  quoting  such  authorities  I  should  distrust 
my  own  judgment  where  it  differs  from  them  if  I  did  not  find  ample 
authority  to  support  me.  But  I  am  unable  to  agree  with  these  dicta. 
In  my  opinion  a  presen^rkdrt  to  an  interest  in  property  which  may 
arise  at  a  period  beyond  the  legal  limit  is  void  notwithstanding  that 
the  person  entitled  to  it  may  release  it. 

Tt  w(Mlld  be  y  great  extension  of  The  "power  of  tying  up  property  to 
hold  otherwise.     If  the  owner  in  fee  of  an  estate,  or  the  absolute  own- 
er of  any  property  could  be  fettered  from  disposing  of  it  by  a  springing 
use  or  executory  devise  or  future  contingent  interest  which  might  not 
4  Kales  I'bop. — 30 


466  RULE   AGAINST   PERPETUITIES  (Part  4 

arise  till  after  the  period  allowed  by  the  rule,  it  would  be  easy  to  tie  up 
property  for  a  very  long-  time  indeed.  The  present  interest  under  the 
executory  limitations  might  be  vested  in  an  infant,  a  lunatic,  or  in  a 
person  who  would  refuse  to  release  it,  and  thus  the  estate  would  be 
practically  inalienable  for  a  period  long  beyond  the  prescribed  limit. 
That  is  clearly  not  the  law.  From  the  report  of  Gilbertson  v.  Rich- 
ards the  dictum  there,  which  I  have  read,  seems  to  be  founded  upon  a 
short  extract  from  Sanders  on  Uses,  thus  cited  in  the  report  of  the  ar- 
gument. In  Washborn  v.  Downs,  1  Cas.  C.  213,  cited  in  Sanders  on 
Uses,  it  is  said  "a  perpetuity  is  where,  if  all  that  have  interest  join, 
and  yet  they  cannot  bar  or  pass  the  estate."  The  whole  passage  in 
Sanders  is  this :  "It  is  said  in  the  case  of  Washborn  v.  Downs  that 
a  perpetuity  is  where,  if  all  that  have  interest  join,  yet  they  cannot  bar 
or  pass  the  estate,  and  in  the  case  of  Scattergood  v.  Edge,  1  Salk.  229, 
that  every  executory  devise  is  a  perpetuity  so  far  as  it  goes,  i.  e.,  an 
estate  inalienable,  though  all  mankind  join  in  the  conveyance.  But," 
says  Sanders,  "these  definitions  of  a  perpetuity  are  not  accurate.  If 
an  estate  be  limited  to  the  use  of  A.  and  his  heirs,  but  if  B.  should  die 
without  heirs  of  his  body,  then  to  the  use  of  C.  and  his  heirs,  the  limi- 
tation to  C.  and  his  heirs  would  be  void  as  tending  to  a  perpetuity. 
Yet  C.  might  no  doubt  release  or  pass  his  future  estate,  and  with  the 
concurrence  of  the  necessary  parties  the  fee  simple  might  be  disposed 
of  before  there  was  a  failure  of  issue  to  B.  A  perpetuity  may  with 
greater  propriety  be  defined  to  be  a  future  limitation  restraining  the 
owner  of  the  estate  from  aliening  the  fee  simple  of  the  property  dis- 
charged of  such  future  use  or  estate  before  the  event  is  determined  or 
the  period  arrived  when  such  future  use  or  estate  is  to  arise.  If  that 
event  or  period  be  within  the  bounds  prescribed  by  law  it  is  not  a 
perpetuity." 

This  was  written  before  the  passing  of  the  Act  8  &  9  Vict.  c.  106, 
which  only  gives  the  power  to  alienate  certain  contingent  interests 
then  inalienable.  But  many  cases  besides  that  given  by  Sanders 
might  be  put  in  which  a  contingent  interest  which  might  be  alienated 
or  released  before  that  Act  would  nevertheless  be  void  if  so  limited 
that  it  might  not  arise  within  a  life  or  lives  in  being  and  twenty-one 
years  afterwards.  It  is  impossible  to  assert  as  a  general  proposition 
that  where  the  ownef^of  an  estate  and  the  owner  ot  sucn  a  contmgent 


interest ~can~Togethennake  a  good  title,  or  one  can  release  to  the 
other,  the  rule  ot  perpetuities  does  not  apply. 

But  it  is  very  singular  that  the  case  of  Washborn  v.  Downs,  which 
seems  to  be  the  foundation  of  these  dicta,  hardly  seems  to  justify  the 
short  report  of  it  given  by  Sanders.  In  that  case  an  equitable  tenant 
in  tail  sought  to  suffer  a  recovery,  and  it  seems  to  have  been  argued 
that  unless  he  could  do  so  there  would  be  a  perpetuity.  The  answer  ap- 
pears to  have  been  No,  because  with  the  concurrence  of  the  trustee, 
the  owner  of  the  legal  estate,  he  could  do  so.     The  passage  quoted  re- 


Ch.  2)  INTERESTS   SUBJECT   TO   THE   RULE  467 

fers  to  some  such  argument  as  this.  The  words  of  the  report  are 
these:  "The  court  in  the  principal  case  took  time  to  advise,  and  advis- 
ed the  parties  to  agree.  And  in  the  debate  of  this  case  it  was  said 
that  a  perpetuity  is  where  if  all  that  have  interest  join  and  yet  cannot 
bar  or  pass  the  estate.  But  if  by  the  concurrence  of  all  having  the 
estate  tail  it  may  be  barred,  it  is  no  perpetuity."  This  does  not  mean 
that  if  a  person  presently  entitled  to  the  benefit  of  a  springing  use  or 
executory  devise  void  for  perpetuity  can  release  it,  the  power  of  doing 
so  would  prevent  its  being  void.  The  question  whether  a  cestui  que 
trust  could  suffer  a  valid  recovery  was  much  discussed  in  the  reign  of 
Charles  II,  as  appears  by  the  cases  of  Goodrick  v.  Brown,  1  Cas.  C. 
49 ;  Lord  Digby  v,  Langworth,  1  Cas.  C.  68 ;  and  it  was  afterwards 
held  in  North  v.  Champernoon,  2  Cas.  C.  78,  by  Lord  Nottingham, 
C,  that  the  recovery  of  the  cestuis  que  trust  in  tail  was  good,  and 
the  trustee  would  be  compelled  to  convey  accordingly.  But  if  I  am 
right  in  this  view  thus  far,  it  does  not  by  any  means  follow  that  the 
contract  in  this  case  is  void. 

The  rule  against  perpetuities  is  a  branch  not  of  the_law  of  contract 
but  of  property.  This  is  clearly  enough  stated  in  page  5  of  the  Intro- 
duction  to  iVir.  Lewis's  well-known  work  on  Perpetuities,  in  passages 
cited  from  Butler's  notes  to  Fearne  on  Contingent  Remainders  and 
from  Jarman  on  Wills.  Mr.  Lewis,  at  page  164,  adopts  the  definition 
of  a  perpetuity  which  I  have  read  from  Sanders,  and  adds  one  of  his 
own,  which  runs  thus  :  "In  other  words,  a  perpetuity  is  a  future  limita- 
tion, whether  executory  or  by  way  of  remainder,  and  of  either  real  or 
personal  property,  which  is  not  to  vest  until  after  the  expiration  of, 
or  will  not  necessarily  vest  within,  the  period  fixed  and  prescribed  by 
law  for  the  creation  of  future  estates  and  interests ;  and  which  is  not 
destructible  by  the  persons  for  the  time  being  entitled  to  the  property 
subject  to  the  future  limitation,  except  with  the  concurrence  of  the 
individual  interested  under  that  limitation." 

A  contract  not  creating  any  estate  or  interest  properly  so  called  in 
property,  at  la\y  ox  equit^is  not,  in  my  opinion,  obnoxious  to  the 
rule!^  For  instance,  a  covenant  to  pay  £1000  when  demanded,  with 
interest  meanwhile,  if  not  barred  by  the  Statute  of  Limitations,  might 
be  enforced  by  an  action  of  covenant  at  any  time.  A  contract  to  buy 
or  sell  land  and  covenants  restricting  the  use  of  land,  though  unlimit- 
ed, are  not  void  for  perpetuity.  In  these  latter  cases  the  contracts  do 
not  run  with  the  land,  and  are  not  binding  upon  an  assign,  unless  he 
takes  with  notice.  They  are  not,  properly  speaking,  estates  or  inter- 
ests in  land,  and  are  therefore  not  within  the  rule.  I  think  that  this 
is  the  true  test  to  apply  to  this  case,  and  am  of  opinion  that  this  cove- 
nant does  not  create  any  interest  in  land.  A  purchaser  without  notice 
from  Powell  would  not  be  bound  by  it.  It  is  not,  I  think,  within  the 
rule  against  perpetuities  at  all.  Consequently  I  hold  that  objection  to 
fail ;  and  as  the  defendant  took  the  land  with  notice,  I  hold  that  he  is 


468  RULE  AGAINST  PERPETUITIES  (Part  4 

bound  in  eqiiitv  by  the  covenant,  on  the  principle  of  Tulk  v.  Moxhay, 
2  Ph.  774. 

I  therefore  make  the  usual  decree  for  specific  performance,  with 
costs.     I  suppose  the  title  is  accepted,  if  not,  there  must  be  the  usual 
reference  as  to  title. 
__  Thp   flpfpuHant  appealed.     The   appeal   was  heard   on   the   6th   of 


^larch,  1882. 

[In  the  course  of  the  argiunent,  counsel  said,  "A  covenant  to  renew 
a  lease  at  the  end  of  forty  or  fifty  years  has  always  been  considered 
good,  and  a  covenant  to  grant  a  renewed  lease  containing  a  similar 
covenant  for  renewal:  Hare  v.  Burges,  4  K.  &  J.  45."^  To  which 
Jessel,  M.  R.,  replied:    "That  is  an_exception  from  the  general  rnlej'  * 

[Davey  in  reply  said:   '^Covenants  to  renew  leases  are  distinguisha- 
ble, for  they  run  wnth  the  land  at  law."! 
Jessel,  M.  K     THis  is  an  appeaPfrom  a  decision  of  Mr.  Justice 


Kay,  and  it  raises  two  points :  first,  whether  an  option  of  repurchase 
given  to  the  London  and  South-Westerh  Railway  Company  by  a  deed 
of  sale  entered  into  between  the  company  and  one  Powell,  the  prede- 
cessor in  title  of  the  defendant  Gomm,  is  obnoxious  to  the  rule  against 
remoteness ;  and  secondly,  whether  the  deed  itself  is  or  is  not  void, 
having  regard  to  the  127th  section  of  the  Lands  Clauses  Consolidation 
Act,  1845. 

The  deed  was  made  in  1865  after  the  compulsory  powers  of  the  rail- 
way company  had  expired,  and  it  recited  that  the  company  was  seised 
of  the  land  which  was  no  longer  required  for  the  purposes  of  their  rail- 
way and  had  contracted  to  sell  it  to  Powell,  who  was  the  adjoining 
owner,  at  the  sum  of  £100,  subject  to  the  condition  thereinafter  con- 
tained. The  company  then  conveyed  the  land  to  Powell  in  fee  for 
£100,  and  the  deed  contained  this  covenant  by  Powell:  [His  Lordship 
read  the  covenant  giving  the  option  of  repurchase  to  the  company.] 

Now  that  is  unlimitfrj  jf)  pojnt  'T'f  <"i'Tnp^  and  it  does  not  appear  to  me 
to  be  possible  to  insert  a  limit  of  time,  because  to  put~m~the^ ^words' 
"within  a  reasonable  time,"  or  any  other  words  limiting  the  time,  would 
be  exactly  contrary  to  the  intention  of  the  parties.  It  is  not  only  un- 
limited in  point  of  time,  but  it  is  obviously  intended  so  to  be.  The 
railway  company  do  not  want  the  land  now,  and  they  do  not  know  that 
they  ever  will  want  it,  but  their  bargain  is  that  whenever  it  may  be 
required  for  the  works  of  the  company  the  owners  or  owner  for  the 

1  See,  also,  on  the  general  validity  of  covenants  for  the  pen^etnal  renewal 
of  leases  in  additionTTT  the  ease  cited.  Pollock  v.  BOOTH,  "IT.  K.  U  Ef].  LiUU ; 
InreTTarde  Browne,  L.  R.  LlOll]  1  Ir.  205;  Blackmore  v.  Boarduian,  1>S  Mo. 
4L!0;  Diffenderfer  v.  Board  of  Public  Schools,  120  Mo.  448,  25  S.  W.  542; 
Banks  v.  Haskie,  45  Md.  207. 

2  In  Woodall  v.  Clifton,  L.  R.  [1905]  2  Ch.  257,  265,  Warrinston,  J.,  said  in 
regard  to  covenants  for  the  perpetual  renewal  of  leases:  "I  think  I  must 
treat  these  covenants  to  renew  as  exceptions  to  the  general  rule — exceptions 
for  which  it  Is  very  difficult  to  find  a  logical  justification,  but  exceptions 
which  have  been  probably  recognized  because  they  were  in  existence  long 
before  the  rule  had  been  developed." 


Ch.  2)  INTERESTS   SUBJECT   TO   THE    RULE  469 

time  being  of  the  land  are  or  is  to  convey  to  the  company.  The  very 
essence  of  the  contract  is  that  it  shall  be  indefinite  in  point  of  time. 
You  cannot,  as  in  Kemp  v.  South-Eastern  Railway  Company,  Law 
Rep.  7  Ch.  364,  insert  by  intendment  the  limitation  that  the  land  is  to 
be  taken  before  the  time  for  executing  the  works  had  expired,  for  in 
this  case  the  time  for  the  execution  of  the  works  had  already  expired. 
It  appears  to  me  therefore  plain  (and  indeed  it  was  admitted  in  argu- 
ment by  the  respondents)  that  the  option  is  unlimited  in  point  of  time 

If  then  the  rule  as  to  remoteness  applies  to  a  covenant  of  this  na- 
ture, this  covenant  clearly  is  bad  as  extending  Beyond  the  period  al- 
lowed by  t_he_rule.  Whether  the  rule  applies  or  not  depends  upon  this, 
as  it  appears  to  me,  d_oes_or  does  not  the  covenant  give  an  interest  in 
the  land  ?  If  it  is  a  bare_or^mere  personal  contract  it  is  of  course  not 
o5noxious  to  the  rule,  but  in  that  case  it  is  impossible  to  see  how  the 
present  appellant  can  be  bound.  He  did  not  enter  into  the  contract, 
but  is  only  a  purchaser  from  Powell  who  did.  If  it  is  a  mere  per- 
sonal contract  it  cannot  be  enforced  against  the  assignee.  Tlierefdfe 
the  company  must  admit  that  it  somehow  binds^the  land,  ^ut  if.it 
binds  the  land  it  creates  an  equitable  interest  in  the  land-  The  right 
to  call  for  a  conveyance  of  the  land  is  an  equitable  interest,  or  equitable 
estate.  In  the  ordinary  case  of_a_contract  for  purchase  there  is  no 
doubtabout  this,  and  an  ^option  for  repurchasd^^is  not  djfferent  in  ij^ 
nature!  T^^person  exercising  the  option  has  to  do  two  things,  he  has 
to  give  notice  of  his  intention  to  purchase,  and  to  pay  the  purchase- 
money  ;  but  as  far  as  the  man  who  is  liable  to  convey  is  concerned,  his 
estate  or  interest  is  taken  away  from  him  without  his  consent,  and 
the  right  to  take  it  away  being  vested  in  another,  the  covenant  giving 
the  option  must  give  that  other  an  interest  in  the  land. 

It  appears  to  me  therefore  that  this  covenant  plainly  gives  the  com- 
pany an  interest  in  the  land,  and  as  regards  remoteness  there  is  no  dis- 
tinction that  I  know  of  (unless  the  case  falls  within  one  of  the  recog- 
nized exceptions,  such  as  charities),  between  one  kind  of  equitable  in- 
terest and  another  kind  of  equitable  interest.  In  all  cases  they  must 
take  effect  as  against  the  owners  of  the  land  within  a  prescribed  period. 

It  was  suggested  that  the  rule  ha§^  no  application  to  any  case  of  con- 
tract, but  in  my  opinion  thg  mode  in  which  the  interest  is  created  is 
immaterial.  Whether  it  is  by  devise  or  voluntarv  gift  or  contract  can 
make  no  differenc^^  The  question  is,  What  is  the  nature  of  the  inter-^ 
e^  iniended  to  be  create37  I  do  not  know  that  I  can  do  better  than~ 
read  the  two  passages  cited  in  argument  from  Mr.  Lewis's  well-known 
book  on  Perpetuities  at  page  164.  He  cites  with  approbation  this  pas- 
sage from  Mr.  Sanders'  Essay  on  Uses  and  Trusts:  "A  perpetuity 
may  be  defined  to  be  a  future  limitation,  restraining  the  owner  of  the 
estate  from  aliening  the  fee  simple  of  the  property  discharged  of  such 
future  use  or  estate  before  the  event  is  determined  or  the  period  is  ar- 
rived when  such  future  use  or  estate  is  to  arise.  If  that  event  or  pe- 
riod be  within  the  bounds  prescribed  by  law  it  is  not  a  perpetuity." 


470  RULE  AGAINST  PERrETUITIES  (Pait  4 

Then  Mr.  Lewis  adds  these  words :  "In  other  words,  a  perpetuity  is  a 
future  limitation  whether  executory  or  by  way  of  remainder  and  of 
eitlier  real  or  personal  property,  which  is  not  to  vest  until  after  the 
expiration  of,  or  will  not  necessarily  vest  within,  the  period  fixed  and 
prescribed  by  law  for  the  creation  of  future  estates  and  interests ;  and 
which  is  not  destructible  by  the  persons  for  the  time  being  entitled  to 
the  property  subject  to  the  future  limitation,  except  with  the  concur- 
rence of  the  individual  interested  under  that  limitation." 

Now  is  there  any  substantial  distinction  between  a  contract  for  pur- 
chase,  or  an  option  for  purchase,  and  a  conditional  limitation?  is  tliere 
any  difference  in  substance  bet^vveen  the  case  of  a  limitation  to  A.  liT 
i€e,  with  a  proviso  that  w^henever  ajiotic^  in  writing  is  sent  and_tlOQ 
paid  by  B.  or  his  heirs  to  A.  or  his  heirs,  the  estate  sBaTTvest  in  B. 
and  his  heirs,  and  a  contract  tha^whenever  such  notice  is  given  arid 
such^payiiient  made  by  B.  or  his  heirs  to  A.  or  his  heirs,  A.  shall  ^on-  _ 
vey  to^B.  and"  EiFheirs?  It  seems  TdTme  tlTaTin  a  court  of-eqmty  it  is 
impossTbleTo^  suggesf~that  there  is  any  real  distinction  between  these 
two  cases.  There  is  in  each  case  the  same  fetter  on  the  estate  and  on 
the  owners  of  the  estate  for  all  time,  and  it  seems  to  me  to  be  plain 
that  the  rules  as  to  remoteness  apply  to  one  case  as  much  as  to  the 
other. 

That  appears  to  me  to  dispose  of  the  case,  unless  Ave  agree  with  the 
conclusion  of  Mr.  Justice  Kay  on  the  last  point  considered  by  him. 
Down  to  that  point  I  agree  with  him.  I  consider  that  he  is  quite  right 
in  the  view  he  takes  of  the  doctrine  of  remoteness  and  of  the  authori- 
ties cited  before  him,  not  forgetting  the  case  of  the  Birmingham  Canal 
Company  v.  Cartwright,  11  Ch.  D.  421,which  must  Se~treatedas  over- 
ruled. But  Mr.  Justice  Kay,  having,  asT^  think  he  lias  mosFcorrectly" — 
and  accurately  defined  the  law  thinks  that  this  case  is  not  within  it,  be- 
cause he  comes  to  the  conclusion  that  "this  covenant  does  not  create 
any  interest  in  the  land."  But  he  had  forgotten  that  if  that  were  so 
he  could  not  make  a  decree  against  Mr.  Gomm.  If  it  were  a  mere  con- 
tract it  was  not  Gomm's  contract,  and  if  it  did  not  in  equity  run  w^ith 
the  land  so  as  to  give  an  interest  in  the  land,  it  could  not  have  been 
enforced  against  him.  It  is  clear  from  his  Lordship's  judgment  tliat  if 
he  had  been  of  opinion  that  this  covenant  gave  the  company  an  interest 
in  the  land  (which,  I  think,  is  the  correct  view),  he  would  have  de- 
cided the  case  the  other  way. 

With  regard  to  the  argument  founded  on  Tulk  v.  Moxhay,  2  Ph. 
774,  that  case  was  very  much  considered  by  the  Court  of  Appeal  at 
Westminster  in  Haywood  v.  The  Brunswick  Permanent  Benefit  Build- 
ing  Society,  8  Q.  B.  t).  403,  and  the  court  there  decided  that  they  A\;.ould 
not  extend  the  doctrine  of^Tulk  v.  Moxhay  to  nffirmntiyp  covenants^ 
coinpelling  a  man  to  lay  out  money  or  do  any  other  act  of  what  I  may 
call  an  active  character,  but  that  it  was  to  be  confined  to  restrictive 
covenants.  Of  course  that  authority  would  be  binding  upon  us  if  we 
did  not  agree  to  it,  but  I  most  cordially  accede  to  it.     T  think  that  we 


Ch.  2)  INTERESTS   SUBJECT   TO   THE   RULE  471 

ought  not  to  extend  the  doctrine  of  Tulk  v.  ^Iqxhay  in  the  way  sug- 
gested here.  Tiie  doctrine  ofthat  case,  rightly  considered,  appears  to 
me_to  be  either  an  exten^oiTin  equity  of  the  doc t rine  of  Spencer's  Case, 
5  Co.  Rep.  16a,  to  another  line  of  cases,  or  else_an^extension  in  equity 
of  the  doctrine  of_negatiye  easements :  such,  for  instance,  as  a  right 
to  the  access  olTlight  which  preyents  the  owner  of  the  servient  tene- 
ment from  building  so  as  to  obstruct  the  light.  The  coyenant  in  Tulk 
V.  Moxhay  was  affirmative  in  its  terms  but  was  held  by  the  court  to 
imply  a  negative.  Where  there  is  a  negative  covenant  expressed  or  im- 
plied, as,  for  instance,  not  to  build  so  as  to  obstruct  a  view,  or  not  to 
use  a  piece  of  land  otherwise  than  as  a  garden  the  court  interferes  on 
one  or  other  of  the  above  grounds.  This  is  an  equitable  doctrine  es- 
tablishing an  exception  to  the  rules  of  common  law  which  did  not  treat 
such  a  covenant  as  running  with  the  land,  and  it  does  not  matter  wheth- 
er it  proceeds  on  analogy  to  a  covenant  running  with  the  land  or  on 
analog}^  to  an  easement.  The  purchaser  took  the  estate  subject  to  the 
equitable  burden,  with  the  qualification  that  if  he  acquired  the  legal  es- 
tate for  value  without  notice  he  w^as  freed  from  the  burden.  That 
qualification,  however,  did  not  affect  the  nature  of  the  burden ;  the 
notice  was  required  merely  to  avoid  the  effect  of  the  legal  estate,  and 
did  not  create  the  right,  and  if  the  purchaser  took  only  an  equitable 
estate  he  took  subject  to  the  burden,  whether  he  had  notice  or  not.  It 
appears  to  me  that,  rightly  considered,  that  doctrinejs  not  an  author- 
ity for  the  proposition  that  an  equitable  estate  or  interest  may  be  raised 
at  any  Time,  notwithstanding  the  rule  against  remoteness.  It  is,  if  I 
may  say  so,  ahdthef~exceptiori  to  the  rules  against  remoteness,  excep- 
tions which  had  previously  been  thoroughly  established  in  many  cases 
at  law  as  regards  easements  and  in  equity  as  regards  charities.  That 
being  so,  it  does  not  appear  to  me  that  Tulk  v.  Moxhay  has  any  di- 
rect bearing  on  the  case  which  we  have  to  decide. 

There  is  anotherjmportant  point  which  alone  would  enabkustode- 
cidethis_ca££jn_favor  of  the  appellant.  Warthe  conveyance  of  1865 
ultra  vires?  When  we  look  at  the  provisions  of  the  Lands  Clauses 
Consolidation  Act,  §  127  et  seq.,  I  think  we  must  consider  them  to 
mean  that  at  the  expiration  of  the  statutory  period,  if  the  land  is  then 
superfluous,  that  is,  if  it  is  not  wanted  for  the  purpose  of  the  railway, 
the  company  must  sell  it  under  the  penalt}^  of  losing  it  by  its  revesting 
in  the  adjoining  owner.  There  is  no  doubt  that  the  company  can,  be- 
fore the  expiration  of  the  statutory  period,  determine  that  the  land  is 
superfluous  and  sell  it,  and  it  is  equally  clear  that  if  at  the  end  of  the 
statutory  period  they  think  that  the  land  may  be  required  for  the  pur- 
pose of  their  railway  it  is  not  then  superfluous.  \Mien  I  say  '"they 
think,"  I  mean  if  their  proper  advisers  have  fairly  and  reasonably  come 
to  that  conclusion,  that  is  sufficient.  So  that  the  fact  of  its  being  super- 
fluous may  be  determined  beforehand  by  the  action  of  the  company, 
or  it  may  be  delayed  after  the  expiration  of  the  statutory  period  with- 
out the  land  being  actually  used,  but  whenever  it  is  determined,  either 


472  RULE  AGAINST   PERPETUITIES  (Part   4 

before  or  after  the  expiration  of  that  period,  that  the  land  is  super- 
fluous, it  becomes  salable  or  vests  in  the  adjoining  owner. 

That  being  so,  it  is  plain  that  when  land  is  sold  as  superfluous,_jio 
interest  in  it  can  be  retained  by  ttie^  company .  Now,  if  I  anrriglvtin 
the^conclusion  at  which  I  have  arrived  as  to  the  nature  of  this  option 
of  repurchase  an  interest  was  retained  by  the  company.  The  form  of 
the  conveyance  is  plain.  It  recites  a  contract  for  sale  subject  to  the 
condition  thereinafter  mentioned.  That  is  not  an  absolute  sale  but  a 
conditional  sale.  Now  the  Statute  in  terms  requires  an  absolute  sale, 
and  that  being  so,  the  company  could  not  sell,  reserving  an  option  of 
repurchase.  The  sale  itself  therefore  was  bevond  thdr_20wer,  and 
was  a  void  sale,  and  we  must  recollect  that  this  is  a  Statute  which  gov- 
erns the  legal  estate  as  much  as  the  equitable  estate.  Then  what  fol- 
lows? The  land  if  superfluous  revested  in  Mr.  Powell  under  sect.  127 
at  the  end  of  the  ten  years,  free  from  any  restriction,  which  would  give 
him  a  title ;  but  if  it  was  not  superfluous,  then  as  the  statutory  period 
of  limitation  had  elapsed  before  the  commencement  of  this  action,  the 
appellant  would  have  obtained  a  title  under  the  Statute  of  Limitations. 
In  either  case,  therefore^_the^appellant's  title  mu^t  be  valid  as  against 
the  title  of  the  compan}\ 

On  these  grounds  it  seems  to  me  that  the  present  appeal  ought  to  be 
allowed. 

Sir  James  Hannen.  The  first  question  in  this  case  is  as  to  the  effect 
of  the  deed"of  the  10th  of  August,  1865. 

It  appears  to  me  that  the  company  are  estopped  from  denying  that 
this  land  was  superfluous  land  at  the  time  of  the  sale  to  Powell.  It  is 
expressly  recited  that  the  land  is  no  longer  required,  and  that  they 
thereupon  propose  to  sell  it  at  a  particular  price. 

It  is  perfectly  plain  that  the  company  has  only  the  right  to  sell  sub- 
ject to  the  terms  imposed  by  the  legislature  in  the  Lands  Clauses  Con- 
solidation Act.  That  Act  requires  the  companv  to  sell  absolutely,  and 
looking  to  the  history  of  legislation  on  this  subject  I  think  there  is  no 
doubt  that  particular  stress  w^as  laid  upon  the  word  "absolutely."  It 
was  inserted,  in  my  opinion,  in  order  to  prevent  the  company  having 
acquired  lands  which  it  was  found  afterwards  were  not  required  for 
the  purpose  of  the  undertaking,  from  still  retaining  indirectly  a  hold 
upon  those  lands.  It  appears  to  me,  therefore,  that  as  this  was  not  an 
absolute  sale,  but  a  conditional  sale,  it  was  void,  and  thattheeltcFt 
would  be  that  at  tTie  end  ot  the  ten  years,  there  being  no  sale,  the  land 
would  vest  in  Powell.  At  the  same  time  I  do  not  think  that  every  con- 
tract made  by  a  railway  company  for  the  purpose  of  settling  at  the 
present  time  what  should  be  the  price  of  land  to  be  acquired  by  them  at 
some  future  time  would  be  bad  in  itself.  I  think  tliat  if  there  had  been 
a  separate  contract  limited  to  the  time  within  which  the  company  would 
have  authority  to  take  lands,  there  would  not  have  been  anything  il- 
legal in  their  entering  into  an  arrangement  with  the  owner  that  they 
should  have  a  right  to  purchase  at  a  particular  price  to  save  the  trouble 


Ch.  2)  INTERESTS   SUBJECT   TO   THE   RULE  473 

and  inconvenience  of  having  the  value  settled  in  some  other  manner, 
and  Kemp  v.  South-Eastern  Railway  Company,  Law  Rep.  7  Ch.  364, 
is  an  authority  to  that  effect. 

The  next  question  is,  does  this  covenant  create^  an^interest  or  estate 
in  the  property  at  law,  or  in  equity.  Upon  that  point  I  Have^noItTiiTg 
to  add"  fo  what  has  been  said  by  the  Master  of  the  Rolls.  It  is  not  a 
subject  with  which  I  have  been  frequently  called  upon  to  deal,  and 
therefore,  any  opinion  that  I  may  express  on  the  subject  has  not  the 
value  it  would  have  if  it  came  from  one  of  my  learned  colleagues ;  but 
I  must  say  that  it  appears  to  me  to  be  a  startling  proposition  that  the 
po\\ier  to  require  a  conveyance  of  land  at  a  future  time  does  not  create 
anyinterest  in  that  land.  If  it  does  create  such  an  interest,  then  it 
appears  to  rhe'tb  T5e  "perfectly  clear  that  the  covenant  in  this  case  vio"^ 
latesjHejFuTe^garnst  perpetuity,  because,  taking  the  passage" whtch  has 
been  cited  from~^anders,  "a  perpetuity  may  be  defined  to  be  a  future 
limitation  restraining  the  owner  of  the  estate  from  aliening  the  fee 
simple  of  the  property  discharged  of  such  future  use  or  estate  before 
the  event  is  determined."  Now  this  covenant  plainly  would  restrain 
the  future  owner  from  aliening  the  estate  to  anybody  he  pleases,  it 
restricts  him  to  aliening  it  to  the  railway  company  in  the  event  of  the 
company  exercising  their  option. 

The  last  question  is,  supposing  this  covenant  does  not  create  any  es- 
tate or  interest,  what  is  the  effect  of  it  as  a  covenant^  It  is  clear  that 
it  is  not__acovenahL_v\:hich  woujd  run  with  the  land  at  la\v^  Spencer's 
Case  ami  the  notes  to  it  in  Smith's  Leading  Cases,  vol.  i.  8th  ed.  p.  90, 
seem  to  me  to  point  very  clearly  to  that  conclusion.  It  has  been  said, 
however,  and  in  fact  the  judgment  with  which  we  are  dealing  lays 
down,  that  although  this  is  only  a  personal  covenant,  yet  Tulk  v.  ]\Iox- 
hay  is  an  authority  for  the  proposition  that  such  a  covenant  if  known 
to  the  purchaser  of  the  estate  binds  him.  This  argument  is  disposed 
of  by  the  decision  of  the  Court  of  Appeal  in  Haywood  v.  The  Bruns- 
wick Permanent  Benefit  Building  Society,  which  seems  to  me  to  put 
a  wholesome  restriction  upon  the  application  of  Tulk  v.  MoxhavJ^y 
la^'ing  down  this  rule,  that  it  only  applies  to  restrictive  covenants,  alid 
does  not  apply  to  an  affirmative  covenant,  such  as  a  covenant  binding 
the  owner  of  the  land^at  some  future  time~To  convey  it. 

For  these  reasons  I  am  of  opinion  that  the  judgment  of  the  court  be- 
low cannot  be  supported,  and  that  the  appeal  must  be  allowed. 

LiNDLEY,  L.  J.  I  am  of  the  same  opinion.  This  is  an  action  for 
specific  performance  of  a  contract  entered  into  not  by  the  defendant 
but  by  somebody  else.  The  first  thing,  therefore,  the  plaintiff's  must 
show  is,  upon  what  legal  principle  the  defendant  is  bound  by  a  con- 
tract into  which  he  did  not  enter. 

It  is  not  contended  that  he  is  bound  by  it  on  the  ground  that  the 
covenant  entered  into  by  Powell  runs  with  the  land  and  binds  him  at 
law.  but  it  is  said  that  though  it  does  not  bind  him  at  law  it  binds  him 
in  equity. 


474  RULE  AGAINST  PERPETUITIES  (Part  4 

Then  upon  what  principle  is  it  that  he  is  bound  in  equity  ?  It  is  said 
that  he  is  bound  in  equity  because  he  bought  the  land  knowing  of  the 
covenant  into  which  his  predecessor  in  title  had  entered.  That  propo- 
sition stated  generally  assumes  that  every  purchaser  of  land  with  no- 
tice of  covenants  into  which  his  vendor  has  entered  with  reference  to 
the  land  is  bound  in  equity  by  all  those  covenants.  That  is  precisely 
the  proposition  which  had  to  be  considered  in  Haywood  v.  Brunswick 
Permanent  Benefit  Building  Society,  and  because  it  was  sought  there 
to  extend  the  doctrine  of  Tulk  v.  Moxhay  to  a  degree  which  was 
thought  dangerous,  considerable  pains  were  taken  by  the  court  to  point 
out  the  limits  of  that  doctrine.  In  that  case  an  owner  in  fee  had  grant- 
ed a  rent,  and  in  order  better  to  secure  it,  he  covenanted  for  himself, 
his  heirs  and  assigns,  to  build  some  houses  on  the  land  out  of  which 
the  rent  issued  and  to  keep  them  in  repair  forever.  It  was  sought  to 
enforce  that  covenant  by  bringing  an  action  for  damages  against  the 
mortgagee  in  possession  of  the  land,  because  the  houses  had  been  al- 
lowed to  get  out  of  repair.  It  was  of  course  seen  that  an  action  would 
not  lie  at  law ;  but  it  was  contended,  on  the  authority  of  Tulk  v.  Mox- 
hay, that  inasmuch  as  the  defendants  took  the  land  with  notice  of  the 
covenants  they  were  bound  by  them  in  equity.  The  Court  of  Appeal 
declined  so  to  extend  the  doctrine  of  Tulk  v.  Moxhay,  and  their  rea- 
sons will  be  found  very  carefully  stated  by  Lord  Justice  Cotton  in  his 
judgment.  The  conclusion  arrived  at  by  the  court  was  that  Tulk^v. 
Moxhay,  when  properly  understood^  jdid_not_apply  to  any  but  restric- 
tivTYovenants.  The  case  of  Cooke  v.  Chilcott,  3  Ch.~D.  694,  before 
Vtce'-IThancenor  Malins  was  very  much  considered,  but  it  was  not  fol- 
lowed by  the  Court  of  Appeal.  Here  we  are  asked  to  extend  the  doc- 
trine of  Tulk  V.  Moxhay,  and  to  apply  it  to  a  covenant  to  sell  land  at 
any  time  for  a  specified  sum  of  money.  That  this  is  an  extension  of 
the  doctrine  cannot,  I  think,  be  denied ;  and  for  the  reasons  which 
were  given  by  the  Court  of  Appeal  in  the  case  to  which  I  have  referred 
I  think  we  ought  to  decline  to  extend  that  doctrine.  If  so,  Jhow_js_ 
Gomm  to  be  held  to  be  bound  b}'  this  covenant  ?  He  did  not  enter 
into  It,  he  is  not~b6uhd  at  law,  and  Tulkjv.  ^loxliav  is  no  authoritv  for 
saying  that  he  is  bound  in  equity.  That  appears  to  me  to  dispose  of 
this  case^ 

I  agree  with  the  observations  rnade_by;_the_Qth£r  jnenib£rs__pf^  the 
court,  that  this  covenant  creates  an  interest  injand  and  is  void  for  re- 
rnotehess.  On  the  question  of  remoteness  one  view  was  taken  by  Mr. 
Justice  Kay  in  this  case,  and  the  other  view  by  Mr.  Justice  Fry  in  Bir- 
mingham Canal  Company  v.  Cartwright.  My  own  view  is  that  the 
observations  made  by  Mr.  Justice  Kay  on  that  case  and  on  Gilbertson 
V.  Richards,  are  sound.  The  error  in  his  judgment  appears  to  me  to 
be,  that  he  has  applied  Tulk  v.  Moxhay  to  this  case  without  sufficiently 
considering  the  extent  to  which  he  was  carrying  it. 

As  regards  the  observations  upon  sect.  127  of  the  Lands  Clauses 
Consolidation  Act,  I  also  concur  with  the  other  members  of  the  court. 


Ch.  2}  INTERESTS   SUBJECT   TO   THE   RULE  475 

It  appears  to  me  that  inasmuch  as  the  company  could  only  sell  by  vir- 
tue of  that  section,  which  requires  an  absolute  sale,  and  as  the  sale 
which  they  made  was  not  an  absolute  sa]e  within  the  true  meaning  of 
that  clause,  the  logical  consequence  is  that  the  whole  transaction  is 
void,  and  on  this  ground,  if  there  had  been  no  other,  the  court  must 
ITave  declined  specifically  to  perform  the  contract. 

I  am  therefore  of  opinion  that  the  appeal  must  be  allowed,  and  judg- 
ment must  be  for  the  defendant.^ 

'  Mr.  Davey  asked  that  the  costs  of  the  short-hand  notes  of  IMr.  Jus- 
tice Kay's  judgment  might  be  allowed. 

Jessel,  M.  R.  We  have  not  used  them,  but  have  read  Mr.  Justice 
Kay's  judgment  in  the  Law  Journal.  If  that  report  had  appeared  a 
sufficient  length  of  time  before  your  brief  was  delivered,  we  should  not 
have  allowed  the  costs  of  a  short-hand  note ;  but  as  it  was  published  so 
late  as  the  3d  of  March,  we  think  the  costs  ought  to  be  allowed. 


In  re  TRUSTEES  OF  HOLLIS'  HOSPITAL. 

(Chancery  Division.     L.  R.   [1S99]  2  Ch.   540.) 

By  an  agreement  dated  October  3,  1898,  a  contract  was  entered  into 
by  an  agent  acting  on  behalf  of  a  majority  of  the  trustees  of  Hollis' 
Hospital  to  sell  to  Ernest  Hague  certain  freehold  property  belonging 
to  the  hospital,  situate  at  Castle  Dyke,  near  Sheffield,  containing  25  a. 
1  r.  17  p.,  for  £5,750. 

Matters  had  proceeded  so  far  that  the  purchaser  was  satisfied  to  ac- 
cept the  title,  and  the  draft  conveyance  had  been  approved  by  the  trus- 
tees' solicitor,  when  a  letter  dated  November  16,  1898,  was  received 
by  the  purchaser's  solicitors  written  by  William  Henry  Anthony,  one 
of  the  trustees  who  had  not  concurred  in  the  sale,  to  the  effect  that 
as  the  heir-at-law  of  Thomas  and  John  Hollis  he  thought  it  his  duty 
to  intimate  to  them  that  he  was  no  party  to  the  sale  of  the  property, 
and  to  call  their  attention  to  a  clause  in  the  title-deeds  as  to  the  prop- 
er tY_j;everting__to_theJhe^^ 

othcrpurpose  than  that  intended  bv  the  settlor ;  and  a  summons  was 
taken  outunder  the  Vendor  and  Purchaser  Act  by  Ernest  Hague  for 
the  purpose  of  determining  whether  or  not  a  good  title  had  been  shown. 

William  H.  Anthony  declined  to  appear  with  his  co-trustees  upon 
the  summons  or  to  take  any  part  in  the  argument.  His  counsel  ap- 
peared simply  to  state  that  he  was  no  party  to  the  contract,  and  de- 
clined to  be  bound  in  any  way  by  the  present  proceedings. 

The  purchaser,  on  the  other  hand,  warned  him  that  in  the  event  of 

3  Accord:  In  re  Tyrrell's  Estate,  [1907]  1  Ir.  194.  292  (covenant  to  extin- 
Riiish  a  rent  charge) ;  Starcher  Bros.  v.  Dutv.  61  W.  Va.  373,  56  S.  E.  524, 
9  L.  R.  A.  (N.  S.)  913,  123  Am.  St.  Rep.  990 :  Woodall  v.  Bruen,  85  S.  E.  170 
(W.  Va.  1915) ;  Barton  v.  Thaw,  246  Pa.  348,  92  Atl.  312,  Ann.  Gas.  1916D, 
570. 


476  RULE   AGAINST   PERPETUITIES  (Part  4 

the  title  being  held  good  and  of  the  contract  being  completed  it  would 
hereafter  be  insisted  that  he  was  bound  by  the  decision  in  his  presence 
of  the  question  of  title  raised. 

The  history  and  title  of  the  property  appeared  from  the  recitals  and 
documents  to  be  as  follows : 

By  indentures  of  lease  and  release  dated  August  26  and  27,  1703, 
Thomas  HoUis  (father  of  Thomas  Hollis,  Senr.)  of  his  charitable  mind 
and  disposition  to  the  intent  to  find  and  provide  habitations  for  six- 
teen poor  persons  from  time  to  time  and  for  ever  to  be  elected  of  the 
poor  of  Sheffield,  or  within  two  miles  round  as  thereby  directed,  and 
to  raise  moneys  necessary  for  keeping  the  fabric  in  which  such  other 
habitations  were  made  at  all  times  thereafter  in  repair,  conveyed  cer- 
tain hereditaments  in  Sheffield  then  converted  into  sixteen  small  apart- 
ments or  habitations  with  other  hereditaments  to  certain  persons  there- 
in named,  their  heirs  and  assigns  for  ever,  to  their  use  and  behoof 
upon  trust  and  subject  to  the  powers,  declarations,  and  agreements 
therein  mentioned  and  expressed. 

By  an  indenture  of  assignment  dated  January  24,  1704,  the  same 
Thomas  Hollis  assigned  to  Thomas  Hollis,  Senr.,  his  executors,  ad- 
ministrators, and  assigns,  certain  Government  terminable  annuities 
amounting  to  i90  per  annum;  and  by  deed-poll  dated  January  26, 
1704,  Thomas  Hollis,  Senr.,  declared  that  the  same  annuities  were  so 
assigned  to  him  upon  trust  that  he  should  pay  the  same  towards  main- 
taining the  said  almshouses,  and  for  several  other  purposes  in  the  said 
deed  mentioned. 

By  a  writing  or  codicil  under  his  hand  and  seal  dated  February  21^ 
1715,  annexed  to  the  deed  of  assignment  of  January  24,  1704,  Thomas 
Hollis,  the  father,  revoked  several  payments  in  that  deed  contained, 
and  left  his  son,  Thomas  Hollis,  Senr.,  liberty  to  continue  or  discon- 
tinue them  as  he,  his  executors  or  assigns,  should  think  fit  without  be- 
ing accountable  to  any. 

Thomas  Hollis  (father  of  Thomas  Hollis,  Senr.)  died,  and  the  be- 
fore-mentioned annuities  were  turned  into  South  Sea  annuities  and 
South  Sea  Stock,  which  annuities  and  stock  were  sold  by  Thomas  Hol- 
lis, Senr.,  for  £1,500. 

Thomas  Hollis,  Senr.,  for  the  augmentation  of  the  said  charities  and 
for  the  better  settlement  thereof,  added  to  the  il,500  the  sum  of  £610, 
and  with  those  two  sums  purchased  certain  messuages,  lands,  and  tene- 
ments from  Sir  John  Statham  and  Thomas  Turner. 

At  the  date  of  the  next-mentioned  indentures  the  hereditaments  orig- 
inally conveyed  by  the  indentures  of  lease  and  release  of  August,  1703, 
had  become  legally  vested  in  Thomas  Hollis,  Senr.,  and  ten  other  per- 
sons (including  Thomas  Hollis  the  younger)  by  way  of  survivorship 
or  otherwise. 

By  indenture  of  lease  for  a  year  dated  May  17,  1726,  and  made  be- 
tween Thomas  Hollis,  Senr.,  of  the  one  part  and  John  Williams  of  the 
other  part,  Thomas  Hollis,  Senr.,  in  consideration  of  5s.  bargained  and 


Ch.  2)  INTERESTS   SUBJECT   TO   THE   RULE  477 

sold  the  hereditaments  so  purchased  by  him  from  Sir  John  Statham 
and  Thomas  Turner  (which  included  the  property  comprised  in  the 
contract  the  subject  of  the  present  application)  unto  the  said  John  Wil- 
liams. To  have  and  to  hold  unto  the  said  John  Williams,  his  execu- 
tors, administrators,  and  assigns,  from  the  day  next  before  the  day 
of  the  date  of  that  indenture  for  a  year  at  a  peppercorn  rent  if  de- 
manded, to  the  intent  and  purpose  that  by  virtue  of  that  deed  and  of 
the  statute  for  transferring  of  uses  into  possession,  the  said  John  Wil- 
liams might  be  in  the  actual  possession  of  all  and  singular  the  prem- 
ises aforesaid,  and  be  thereby  enabled  to  accept  a  grant  and  release 
of  the  reversion  and  inheritance  thereof  to  him,  his  heirs  and  assigns 
for  ever,  to  and  for  such  uses,  trusts,  intents,  and  purposes  as  in  and 
by  such  release  should  be  limited,  expressed,  and  declared  concerning 
the  same. 

There  was  a  similar  indenture  of  lease  to  John  Williams,  mutatis 
mutandis,  by  the  then  trustees  of  the  almshouses  and  premises  com- 
prised in  the  release  of  1703. 

By  an  indenture  dated  jVIay  18,  1726,  and  made  between  the  said 
Thomas  Hollis,  Senr.,  of  the'  iirstpart,  tiie  ten  named  persons  (includ- 
ing Thomas  Hollis,  younger)  therein  mentioned  (being  the  ten  persons 
in  whom,  jointly  with  Thomas  Hollis,  Senr.,  the  property  originally 
devoted  to  charity  by  the  father  of  Thomas  Hollis,  Senr.,  was  then  le- 
gally vested),  of  the  second  part,  the  said  John  Williams  of  the  third 
part,  and  Isaac  Hollis,  William  Steed,  Daniel  Bridges,  and  John  Crooks 
of  the  fourth  part,  after  reciting  the  deeds  and  matters  before  referred 
to,  it  was  witnessed  that  for  the  support  and  maintenance  of  the  said 
charity  and  for  the  better  accomplishment  and  performance  of  the 
trusts  and  powers  in  them  reposed  by  former  conveyances,  the  said 
Thomas  Hollis,  Senr.,  and  the  ten  persons  parties  of  the  second  part, 
nominated,  elected,  and  chose  the  four  persons  parties  of  the  fourth 
part  to  be  trustees,  to  be  added  to  the  surviving  trustees  in  the  room 
of  such  others  of  the  said  trustees  as  were  dead ;  and  it  was  further 
witnessed  that  in  consideration  of  5s.  apiece  to  the  old  trustees,  paid 
by  the  said  John  \\^iiliams,  the  old  trustees  granted,  aliened,  released, 
and  confirmed  unto  the  said  John  Williams  in  his  actual  possession  of 
the  tenements  and  hereditaments  next  thereinafter  mentioned  then 
being  by  force  and  virtue  of  the  indenture  of  bargain  and  sale  for  one 
year  bearing  date  the  day  before  the  date  of  this  indenture,  in  consid- 
eration of  money  and  by  force  of  the  statute  for  transferring  of  uses 
into  possession,  and  to  his  heirs  the  hereditaments  by  the  indenture 
of  release  of  August,  1703,  conveyed  by  Thomas  Hollis  (father  of 
Thomas  Hollis,  Senr.),  to  hold  unto  the  said  John  \\'illiams.  his  heirs 
and  assigns  for  ever,  to  the  use  and  behoof  of  Thomas  Hollis,  Senr., 
and  the  fourteen  other  persons,  the  old  and  new  trustees,  their  heirs 
and  assigns  for  ever,  upon  the  trusts  and  to  and  for  the  several  and 
respective  uses,  intents,  and  purposes  thereinafter  limited,  expressed, 
and  declared  of  and  concerning  the  same;    and  it  was  thereby  fur- 


478  RULE  AGAINST  PERPETUITIES  (Part  4 

ther  witnessed  that  the  said  Thomas  Hollis,  Senr.,  for  the  better  sup- 
port and  maintenance  of  the  said  charity  and  for  the  augmentation 
thereof  and  in  consideration  of  5s.  paid  by  the  said  John  WilHams, 
granted,  aHened,  released,  and  confirmed  to  the  said  John  Williams  (in 
his  actual  possession  of  the  hereditaments  thereinafter  mentioned  then 
being  by  force  and  virtue  of  the  indenture  of  bargain  and  sale  for  one 
year  bearing  date  the  day  next  before  the  date  of  this  indenture,  in  con- 
sideration of  money  and  by  force  of  the  statute  for  transferring  of 
uses  into  possession),  and  to  his  heirs,  all  the  hereditaments  purchased 
by  the  said  Thomas  Hollis,  Senr.,  from  Sir  John  Statham  and  Thomas 
Turner.  To  have  and  to  hold  unto  the  said  John  Williams,  his  heirs 
and  assigns  for  ever,  to  the  use  and  behoof  of  the  said  Thomas  Hollis, 
Senr.,  and  the  other  old  and  new  trustees,  their  heirs  and  assigns  for 
ever.  Nevertheless,  upon  the  several  and  respective  trusts  and  to  and 
for  the  several  and  respective  intents  and  purposes  thereinafter  lim- 
ited, expressed,  and  declared  of  and  concerning  the  same.  Then  fol- 
lows a  declaration  of  the  trusts  of  all  the  hereditaments  conveyed  to 
the  effect  that  the  old  and  new  trustees  and  the  survivors  and  survivor 
of  them,  their  heirs  and  assigns,  or  the  heirs  and  assigns  of  such  sur- 
vivor, should  place  atid  put  sixteen  poor  persons  that  should  be  of  the 
ages  of  fifty  years  at  least  and  single,  of  the  town  of  Sheffield  or  with- 
in two  miles  round,  in  the  sixteen  apartments  or  dwellings  (being  the 
hereditaments  originally  conveyed  by  Thomas  Hollis,  the  father  of 
Thomas  Hollis,  Senr.),  with  divers  provisions  for  the  government  of 
the  charity  and  filling  up  vacancies.  And  upon  this  further  trust  that 
they  the  said  old  and  new  trustees,  their  heirs  and  assigns,  or  the 
major  part  of  them,  their  heirs  and  assigns,  should  pay,  apply,  employ, 
and  lay  out  the  rents,  issues,  and  profits  of  all  and  singular  the  prem- 
ises thereinbefore  granted  and  released  as  therein  mentioned  for  the 
benefit  of  the  objects  of  the  charity,  including  paying  a  schoolmaster 
and  schoolmistress  for  the  teaching  of  fifty  poor  artificers'  and  trades- 
men's children,  and  that  they  the  said  trustees  should  lay  out  and  ex- 
pend such  part  or  parts  of  the  rents,  issues,  and  profits  that  should 
or  might  arise  or  grow  out  of  the  thereby  granted  and  released  prem- 
ises in  the  necessary  support  and  reparations  of  the  tenements  and 
apartments,  and  what  could  be  spared  thereof  (if  any)  to  be  kept  in 
store  against  any  extraordinary  occasion  for  repairing,  or  to  be  laid 
out  in  such  other  manner  as  the  trustees  or  the  major  part  of  them, 
their  heirs  and  assigns-,  should  think  fit.  Then  follow  provisions  for 
the  appointment  of  new  trustees,  for  keeping  accounts  for  laying  out 
the  balance,  with  power  to  deduct  out  of  the  rents,  issues,  and  profits 
£S  to  defray  charges  of  keeping  and  settling  accounts,  and  to  eat  and 
drink  in  commemoration  of  the  benefactors  of  the  charity ;  and  then 
follows  this  provision,  upon  which  the  question  in  the  present  case 
arises : 

"Provided  always  and.  it  is  herebjyuledared  and  agreed  by  and  be- 
tween tlie  said  parties  to  these  presents,  that  if  at  any^  tmie  Trereafter 


Ch.  2)  INTERESTS   SUBJECT   TO   TUE   RULE  479 

the  premises  hereby  conveyed  or^ny  part  thereof,  or  the  rents,  issues, 
anxTp^rofits  of  the  s'ame^or  of  any  part  thereof^  shall  be  employed  or' 
corfverted  to  or  for  any  other  use,  or  uses,  intents,  or  purposes  than 
as  are  hereinbefore  mentioned  and  specified.  Then  and  from  thence- 
forth all  and  every  the  buildings,  lands,  and  prernisesliereinbefore  con- 
veyed to  the  uses  and  upon  the  trusts  hereinbefore  mentioned  shall  re- 
vert to  the  right  heirs  of  the  said  Thomas  Hollis,  Senr.,  party  hereto, 
aViythmg'lie rein  contained  to  the  contrary  thereof  in  anywise  notwith- 
standing." 

Then  follow  certain  powers  for  Thomas  Hollis,  Senr.,  during  his 
life,  and  after  his  decease  for  John  Hollis,  Newman  Hollis,  Junr.,  Isaac 
Hollis,  and  Richard  Solley,  four  of  the  trustees,  and  the  sui-vivors  and 
survivor  of  them,  at  any  time  or  times  during  their  lives  or  the  life 
of  the  survivors  or  survivor  of  them,  to  nominate  tlie  persons  to  re- 
ceive the  benefit  of  the  almshouses  and  to  appoint  schoolmasters  and 
schoolmistresses,  and  a  power  for  Thomas  Hollis,  Senr.,  in  his  life- 
time to  revoke,  add,  alter,  or  diminish  all  or  any  of  the  charities  or 
sums  thereinbefore  appointed  in  such  manner  as  he  should  see  fit,  and 
a  power  for  the  trustees  to  pay  their  costs,  charges,  and  expenses,  and 
to  lease  for  terms  not  exceeding  twenty-one  years,  and  to  lease  certain 
closes,  purchased  of  Thomas  Turner,  for  eight  hundred  years  or  any 
less  term  to  build  on,  and  a  covenant  with  John  Williams,  his  heirs 
and  assigns,  against  incumbrances. 

Byrne,  J.,  after  stating  the  facts  as  set  out  above,  proceeded:  It 
is  contended  on  behalf  of  the  purchaser  that  a  good  title  cannot  be 
made  by  reason  of  the  clause  in  the  deed  of  May  18,  1726,  providing 
for  the  reverter  to  the  right  heirs  of  Thomas  Hollis,  Senr.,  inasmuch 
as  the  sale  will  be  a  breach  of  the  condition  and,  alternatively,  that  the 
title  shown  is  not  one  which  ought  to  be  forced  upon  a  purchaser. 

It  is  contended  on  behalf  of  the  vendors — that  is,  the  trustees  other 
than  W.  H.  Anthon^y^^ — that  the  conditioa- is  void  as  tejiding  to  a  per- 
petuity, and  that  whether  the  clause  in  question,  be  construed  as  oper- 
ating by  way  of  shifting  use,  as  they  say  it  should  be,  nr  by  way  of 
condition  subsequent. 

Tlie  ettect  ot  tne  method  of  conveyance  adopted  was  as  follows : 
the  lease  for  a  year  operated,  and  the  bargainee  John  Williams  was  in 
possession  by  the  Statute  of  Uses.  The  release  operated  by  enlarging 
the  estate  or  possession  of  the  bargainee  to  a  fee — this  was  at  the  com- 
mon law — and  the  use  being  declared  in  favor  of  persons  other  than 
the  bargainee  the  statute  intervened  and  annexed  or  transferred  the 
possession  of  the  releasee  to  the  use  of  the  trustees  to  whom  the  use 
was  declared:  see  Butler's  notes  to  Coke  upon  Littleton  (18th  Ed.)  p. 
272  a,  note  vi.  2. 

I  think  the  clause  about  wdiich  the  contest  arises  is  in  terms  and  form 
a  true  common  law  condition  subsequent,  being  aptly  worded  and  be- 
ing in  favor  of  the  heirs  of  Thomas  Hollis,  Senr. 

It  is  true  that  words  of  an  express  condition  may  in  certain  cases  be 


480  RULE  AGAINST  PERPETUITIES  (Part  4 

intended  as  a  limitation,  but  the  rule  is  that  it  shall  not  ordinarily  be 
so  construed,  and  there  does  not  appear  to  be  any  reason  in  the  pres- 
ent case  why  it  should  be  construed  as  a  limitation  rather  than  as  a 
condition:   see  Sheppard's  Touchstone  (7th  Ed.)  p.  124,  note  16. 

It  was  conceded  in  argument  that  if  the  clause  in  question  ought  to 
be  construed  as  a  limitation  or  as  creating  a  shifting  usejt  would  be 
void  as  mf  ringing  the  rule  against  peipeti^ties :  and  it  was  argued  that 
the"clause  ought  to  be  construed  as  one  intended  to  shift  the  use  which 
was  vested  by  "virtueot  tlie  release  in  the  trustees^  upon  the  happening 
of^Tne~coiitemplated  event,  in  the  heirs  of  the  original  bargainor,  and 
that  it  was  not  possible  for  it  to  operate  otherwise,  having  regard  to 
the  fact  that  the  estate  to  be  defeated  was  one  existing  only  by  virtue 
of  the  statute.    I  do  not  think  that  this  argiiment  can  prevail. 

It  is  laid  downTn  terms  in  Sheppard^s^ouchstone,  p.  120,  that  a 
condition  may  be  annexed  to  a  limitation  of  uses,  and  thereby  the  same 
— namely,  the  uses  or  the  estates  arising  from  the  uses — may  be  made 
void.  To  which  statement  a  note  is  appended  by  Mr.  Preston:  "and 
shall  be  executed  by  Statute  27  Hen.  8,  so  that  the  donor  and  his  heirs 
may  take  advantage  of  the  condition.  Sav.  77 .  See  further  in  Vin. 
Abr.  Condition  (N)." 

In  Serjeant  Rudhall's  Case,  Savile,  Case  civ.,  p.  76,  the  serjeant, 
"being  cestui  que  use  in  fee,  and  therefore  being  entitled  to  devise  the 
use,  devised  certain  lands  before  the  Statute  of  Uses  by  his  will  in  writ- 
ing to  Charles  his  younger  son  and  the  heirs  male  of  his  body,  with  re- 
mainder to  John  his  eldest  son  in  fee,  with  this  condition :  that  neither 
the  said  Charles  nor  any  of  his  heirs  of  his  body  should  aliene  or  dis- 
continue any  of  the  said  lands  but  only  to  the  jointure  of  his  wife  for 
the  time  being,  and  for  the  use  of  the  said  jointures  of  the  said  wives 
of  the  said  heirs  for  term  of  lives  of  the  said  wives.  And  after  the  said 
William  Rudhall  died  and  Charles  his  son  entered,  and  after  the  year 
4  Edw.  6  (that  is,  after  the  Statute  of  Uses),  by  his  indenture  leased 
the  land  to  the  defendants  for  term  of  their  lives,  rendering  the  ancient 
rent  to  him,  his  heirs  and  assigns.  Then,  1  EHz.,  the  said  Charles 
levied  a  fine  to  certain  persons  and  their  heirs  with  proclamations, 
which  was  to  the  use  of  the  said  Charles  and  Alice  his  wife  and  the 
heirs  male  of  the  body  of  Alice  by  him  begotten,  and  for  default  of 
such  issue  to  the  use  of  the  heirs  of  the  said  Charles  begotten,  and  for 
default  of  such  issue  to  the  use  of  the  right  heirs  of  the  said  William 
Rudhall  the  father.  And  it  was  averred  that  the  use  of  this  fine  was 
for  the  jointure  of  the  said  Alice  for  term  of  her  life.  And  the  plain- 
tiff, as  heir  of  Serjeant  Rudhall,  entered  for  the  condition  broken. 
And  in  this  case  three  doubts  arising:  one,  if  it  was  condition  or  limi- 
tation of  estate  in  use ;  another,  if  the  condition  was  broken ;  and  the 
third,  if  the  heir  of  the  cestui  que  use  should  take  advantage  of  condi- 
tion broken  by  the  Statute  of  Uses.  And  it  appears  that  this  is  con- 
dition, because  condition  destroys  the  estate  and  returns  the  land  to 
the  donor  and  his  heirs;   a  limitation  of  estate  is  when  the  first  estate 


Ch.  2)  INTERESTS   SUBJECT   TO   THE   RULE  481 

is  destroyed  and  new  estate  limited  by  way  of  remainder  or  otherwise. 
And  here  is  condition,  because  there  is  not  a  new  estate  limited  over, 
but  the  estate  to  which  it  is  annexed  is  destroyed.  And  then  arises  for 
consideration  if  the  condition  is  broken :  and  it  appears  that  lease  for 
lives  of  the  defendants  reserving  the  ancient  rent  being  made  accord- 
ing to  the  statute  is  not  a  discontinuance.  For  the  statute  has  given 
power  to  make  such  estates  that  they  are  legal,  and  legal  estates  cannot 
make  injurious  discontinuances.  Therefore  the  condition  in  this  re- 
spect is  not  broken ;  but  the  limitation  of  other  uses  by  which  other 
heirs  are  inheritable  than  were  at  first  is  to  break  the  condition.  For 
the  limitation  of  use  on  fine  in  special  tail  is  contrary  to  the  will  of 
Serjeant  Rudhall.  And  the  limitation  of  the  fee  to  the  heirs  of  Ser- 
jeant Rudhall  is  other  limitation  to  heirs  than  as  he  himself  limits: 
for  he  limits  the  fee  to  John  Rudhall,  his  eldest  son,  and  his  heirs ;  and 
it  might  be  that  John  Rudhall  and  his  heirs  are  heirs  of  the  half-blood 
to  the  direct  heirs  of  Serjeant  Rudhall,  whence  it  is  other  inheritance 
than  as  was  in  the  first  limitation,  which  is  breach  of  the  condition. 
And  as  to  the  taking  advantage  of  condition  annexed  to  the  use,  it  ap- 
pears that  the  Statute  of  Uses  has  given  this  advantage  when  the  uses 
and  possession  are  united,  that  the  heir  of  the  father  enter,  by  which 
it  appears,  by  the  opinion  of  all  the  justices,  that  the  entry  was  ai 
lowable  and  the  plaintiff  shall  recover.  And  it  was  adjudged  that  his 
entry  was  allowable,  for  the  condition  was  broken  by  limitation  of  use 
in  special  tail  and  of  the  other  remainder  in  fee  in  the  heirs  of  the 
father;  but  lease  for  life,  according  to  the  statute,  is  not  discontinu- 
ance, and,  therefore,  no  breach  of  condition.  Also,  this  entry  for  con- 
dition is  warranted  by  the  Statute  of  Uses,  and,  also,  it  was  agreed 
that  this  was  condition  and  not  limitation." 

I  have  translated  the  report  out  of  the  law  French,  and  I  think  that 
the  case,  which  is  also  reported  in  other  books  (Moore,  212;  1  Leon. 
298),  is  an  authority  for  the  statement  in  Sheppard's  Touchstone,  p. 
120. 

The  next  question  is,  whether  or  not  the  condition,  being  an  express 
common  law  condition  subsequent,  is  void  for  perpetuity.  1  have  not 
beenTef erred To~any  case  deciding  the  question,  nor  have  I  since  the 
argument,  after  a  considerable  search,  been  able  to  find  any  authority 
in  the  reports  enabling  me  to  say  that  the  point  has  been  judicially  de- 
cided. 

For  the  exposition  of  our  very  complicated  real  property  law,  it  is 
proper  in  the  absence  of  judicial  authority  to  resort  to  text-books  which 
have  been  recognized  by  the  courts  as  representing  the  views  and  prac- 
tice of  conveyancers  of  repute.  Except  in  the  comparatively  recent 
although  most  valuable  book  of  the  late  Mr.  Challis  (whose  loss  we  all 
regret),  to  which  I  shall  have  to  refer  more  fully  later  on,  I  cannot 
find  any  definite  statement  of  opinion  adverse  to  the  views  expressed 
by  Air.  Sanders  and  Mr.  Lewis  in  their  well-known  treatises,  and  I 

4  KALES~PROPy— 31 


482  RULE  AGAINST  PERPETUITIES  (Part  4 

will  first  refer  to  Sanders  on  Uses  and  Trusts  (5th  Ed.)  vol.  1,  pp. 
206,  207,  213.     [His  Lordship  read  the  passages,  and  continued:] 

I  find  in  Lewis  on  Perpetuity  (Ed.  1843)  pp.  615,  616,  the  opinion 
of  the  learned  author  expressed  in  clear  and  unambiguous  language. 
[His  Lordship  read  the  passages,  and  continued:] 

Amongst  quite  modern  text-writers  I  find  a  similar  expression  of 
opinion.  See  the  work  of  the  learned  American  author  Mr.  Gray, 
who  has  written  on  the  law  of  Perpetuity,  at  p.  215,  where  he  states 
his  view,  in  spite  of  the  fact  that  there  are  American  authorities  tend- 
ing the  other  way,  the  point  not  having  been  taken  or  argued  in  such 
authorities ;  see  also  Marsden  on  Perpetuities,  p.  4. 

I  have  purposely  avoictecPreferring  to  certain  dicta  in  recent  cases 
until  I  come  to  examine  Mr.  Challis'  argument,  which  was  in  fact  the 
basis  of  the  argument  putlorward  on  the  parr  of  the  purchaser  in  the 
present  case.  That  argument  and  the  learned  author's  expression  of 
opinion  are  to  be  found  in  Challis'  Law  of  Real  Property  (2d  Ed.) 
pp.  174-177.  [His  Lordship  read  the  passages  he  referred  to,  and 
continued :] 

Pausing  at  the  introductory  paragraphs,  I  do  not  propose  to  em- 
bark upon  a  consideration  of  the  origin  and  development  of  the  rule 
or  rules  against  perpetuities,  about  which  there  have  been  and  will 
continue  to  be  grave  differences  of  opinion  amongst  real  property 
lawyers.  I  find  a  clear  and  well-recognized  rule  certainly  applicable 
to  all  ordinary  methods  of  disposition  in  vogue  since  the  Statute  of 
Uses,  and  what  I  have  to  do  is  to  see  whether  or  not  that  rule  applies 
to  prevent  the  effectuating  by  means  of  a  common  law  condition  what 
is  forbidden  by  the  law  in  the  case  of  all  other  methods  of  disposition 
of  property. 

Mr.  Challis  is  right  of  course  when  he  says  that  "when  any  part  of 
the  common  law  is  found  to  require  amendment,  the  Legislature 
alone  is  competent  to  apply  the  remedy."  But  the  courts  have  first 
to  find  what  is  the  common  law — that  is,  the  principle  embodied  in 
what  is  called  the  common  law — and  to  apply  it  to  new  and  ever- 
varying  states  of  fact  and  circumstances.  The  common  law  is  to  be 
sought  in  the  expositions  and  declarations  of  it  in  the  decisions  of  the 
Courts  and  in  the  writings  of  lawyers.  New  statutes  and  the  course 
of  social  development  give  rise  to  new  aspects  and  conditions  which 
have  to  be  regarded  in  applying  the  old  principles.  The  policy  of  the 
law  against  the  creation  of  perpetuities  was  certainly  asserted  at  a 
very  early  date,  as  was  also  the  policy  of  discountenancing  unrestrict- 
ed restraints  upon  alienation.  I  may  give  by  way  of  illustration  what 
was  said  by  Lord  Macnaghten  in  the  case  of  Nordenfelt  v.  Maxim 
Nordenfelt  Guns  and  Ammunition  Co.,  [1894]  A.  C.  535,  564,  565. 
[His  Lordship  read  the  passage,  and  continued :] 

Might  it  not  be  said  from  Mr.  Challis'  point  of  view  that  if  it  was 
the  common  law  in  the  reign  of  Queen  Elizabeth  that  all  restraints  of 
trade,  general  or  partial,  were  void,  that  they  must  still  be  void  ?    The 


Ch.  2)  INTERESTS   SUBJECT   TO   THE   RULE  483 

answer  appears  to  me  to  be  that  the  principle  was  that  restraints  of 
trade  are  contrary  to  public  policy,  and  that  is  the  principle  still ;  it  is 
the  application  of  it  that  has  varied. 

An  illustration  of  a  void  conclition  because  impossible  of  fulfilment 
is  given  in  Sheppard's  Touchstone,  p.  133 — namely,  if  one  give  o£ 
grant  land  on  condition  that  a  man  will  go  to  Rome  in  three  days. 
Thdl  which  was  impossible  at  the  time  when  the  illustration  was  given 
has  now  become  possible  owing  to  a  change  of  circumstances,  and 
though  tlie  old  principle  stands  the  application  of  it  has  changed.  In 
reference  to  the  suggestion  as  to  devising  "a  novel  restriction  to  be 
applied  to  novel  forms  of  limiting,  or  otherwise  conferring,  an  estate 
or  interest  unknown  to  the  common  law"  (Challis,  p.  175),  I  may  point 
out  that  in  the  present  case  the  object  of  the  grantor  could  not  have 
been  obtained  without  adopting  a  novel  form  of  assurance  unless  in  a 
very  roundabout  and  circuitous  fashion.  He  wanted  to  vest  the  es- 
tate in  himself  jointly  with  others. 

It  is  right  to  mention  here  that  this  case  being  one  of  a  gift  for 
charitable  purposes,  the  question  could  not  have  arisen  had  the  deed 
been  dated  ten  years  later  than  it  was,  having  regard  to  the  provisions 
of  the  Mortmain  Act  (9  Geo.  2,  c.  36),  which  provides  that  the  gift  or 
conveyance  must  be  without  any  power  of  revocation,  reservation, 
trust,  condition,  limitation  clause  or  agreement  whatsoever  for  the 
benefit  of  the  donor  or  grantor,  or  of  any  person  or  persons  claiming 
under  him. 

I  think  that  some  of  Mr.  Challis'  criticisms  of  the  dicta  of  Jessel, 
M.  R.,  in  the  case  of  In  re  Macleay,  L.  R.  20  Eq.  186,  are  not  quite 
reasonable.  The  use  of  the  expression  "tenant  in  tail"  at  p.  190  of 
the  report  is  an  obvious  slip,  either  verbal  or  clerical,  for  "tenant  in 
fee,"  as  is  clear  by  reference  to  p.  187,  where  the  learned  judge  says : 
"Looking  at  the  will,  I  have  no  doubt  that  there  is  a  condition  an- 
nexed to  the  gift  in  fee,"  and  this  is  followed  in  the  next  sentence  by 
the  remark :  "First  of  all,  it  is  to  be  observed  that  the  condition, 
good  or  bad,  is  confined  within  legal  iimiits ;  it  is  applicable  merely  to 
the  devisee  himself,  and  therefore  is  not  void  on  any  ground  of  re- 
moteness." 

This  being  so,  I  find  in  the  passage  I  have  read,  coupled  with  the 
passage  at  p.  190,  referred  to  by  Mr.  Challis,  a  clear  expression  of 
opinion  by  Jessel,  M.  R.,  that  had  the  condition  in  question  not  been 
limited  in  point  of  time,  as  it  was,  it  would  have  been  void  for  remote- 
ness. 

The  decision  of  North,  J.,  in  Dunn  v.  j^lood,  25  Ch.  D.  629,  as  to 
the  remoteness  of  the  power  of  re-entry  in  that  case  was  obiter,  in  the 
sense  that  it  was  unnecessary  for  the  purposes  of  the  decision  to  de- 
termine it,  although  it  was  a  question  raised  and  argued ;  but  I  think 
that  Mr.  Challis,  in  saying  that  nothing  was  said  on  appeal^  (1885),  28 
Ch.  D.  586,  to  support  the  obiter  dictum,  appears  to  have  overlooked 
the  observation  of  Baggallay,  L.  J.,  28  Ch.  D.  592,  where  he  says : 


484  RULE   AGAINST   PERPETUITIES  (Part  4 

"This  right  of  re-entry  was  held  by  Air.  Justice  North  to  be  void  for 
remoteness.  We  have  not  heard  the  counsel  for  the  defendant,  but 
as  at  present  advised  I  concur  with  Mr.  Justice  North  that  this  right 
could  not  be  enforced  being  void  under  tlie  rule  against  perpetuities." 
~T.  miist  also  notice  that  Alf.  Challis  niakes^no^reference  whatever  to 
the  opinions  of  Sanders  and  Lewis  which  I  have  quoted. 

The  result  appears  to  be  that  there  are  expressions  of  opinion  by 
Jessel,  M.  R.,  North,  J.,  and  Baggallay,  L.  J.,  and  the  opinions  of  two 
great  real  property  lawyers  and  text-writers,  in  favor  of  the  invalidity 
of  such  a  condition  as  the  one  in  question ;  besides  the  opinions  of 
modern  text-writers ;  while  on  the  other  side  there  is  nothing  definite 
except  the  opinion  and  reasoning  of  the  late  Mr.  Challis  in  his  work 
on  real  property.  It  is  to  be  noticed  that  Mr.  Challis  put  forward  the 
surmise  that  at  the  present  day  the  courts  would  not  acquiesce  in  the 
conclusion  he  draws  without  great  reluctance;  and  in  reference  to  his 
appeal  to  arguments  to  be  derived  from  history,  I  may  refer  to  his 
own  observations :  Challis,  p.  394.  [His  Lordship  read  them,  and 
continued:] 

I  am  of  opinion  that  the  condition  in  question  is  obnoxious  to  the  ^ 
rul^  against  perpetuities.* 

But  this  still  leaves  another  question  for  consideration,  namely,  is_ 
the  title  one  which  ought  to  be  forced  upon  a  purchaser?    The  rule 
wIiTch  should  be  foIlau^edTmluch^cases'is  thus~slal'ed  by  Chitty,  J.,  in 
the  case  of  In  re  Thackwray  and  Young's  Contract,  40  Ch.  D.  34,  38, 
39,  40.     [His  Lordship  read  the  observations,  and  proceeded:] 

I  have  not  in  the  present  case  any  decisions  or  dicta  of  judges  to 
lead  me  to  a  contrary  conclusion  to  that  to  which  I  have  come,  and 
the  question  is  one  of  general  law,  upon  which  I  have  dicta  of  eminent 
judges  and  opinions  of  text-writers  of  authority  which  I  consider 
justify  the  view  I  have  expressed. 

At  the  same  time,  the  point  js^ng  Q^  some  obscurity  and  difficulty, 
and  one  which  cannot  be  said  to  have  been  the  subject  of  direct  ju- 
dicial decision.  Moreover,  regard  must  be  had  to  the  fact  that  the 
person  claiming  to  be  heir-at-law  of  Thomas  HoUis,  Senr.,  has  given 
a  notice  which  must  be  taken  to  be  notice  of  his  intention  to  claim  the 
benefit  of  the  breach  of  condition,  if  broken,  and  he  has  declined  to 
argue,  or  to  be  bound  by  the  present  decision ;  so  that  the  purchaser 
if  he  completes  will  be  in  danger  of  immediate  litigation — an  element 
which  must  have  very  great  weight  in  considering  whether  or  not  the 
title  ought  to  be  forced  upon  him:  see  Pegler  v.  White  (1864)  33 
Beav.  403,  and  Fry  on  Specific  Performance  (3d  Ed.)  p.  408. 

Upona_consideration  of  all  the  circumstances  I  do  not  think  I 
ought  to  say  that  such  a  title  has  been  shown  as  ought  to  be  forced 
upo^n  the  purcliaserif  he  is  unwilling  to  complete. 

4  For  the  American  cases  contra,  see  Gray's  Rule  against  Perpetuities,  §§ 
304^311.    Cf.  Cooper  v.  Stuart,  L.  R.  14  App.  Cas.  286. 


Ch.  2)  INTERESTS   SUBJECT   TO   THE   RULE  485 

In  re  ASHFORTH. 
(Chancery  Division.     L.  R.  [1905]  1  Ch.  535.) 

FarwELL,  J.,  delivered  the  following  written  judgment:'  Martha 
Sarah  Asliforth  made  her  will  on  February  21,  1863,  and  thereby  de- 
vised her  real  estate  to  trustees  and  their  heirs  upon  trust  to  receive 
the  rents  and  profits  and  divide  the  same  as  soon  as  they  conveniently 
could  after  Lady  Day  and  IMichaelmas  Day  in  each  year  into  three 
equal  parts,  and  pay  the  same  as  therein  mentioned  to  her  three  chil- 
dren and  the  survivors  or  survivor  of  them  during  their  lives  and  the 
life  of  the  survivor,  and  she  then  proceeded  as  follows  :  "And  from 
and  immediately  after  the  d_e£ease  nithe  longest  liyer  of  my  said  three 
children  John  jMorris  Ashforth,  George  Morris  Ashforth,  and  ^Nlar- 
tha  Morris  Ashforth,  I  direct  my  said  trustees  for  the  time  being, 
subject  nevertheless  to  the  payment  of  the  said  annuity  to  Miss  Eliza 
Robinson,  if  she  should  be  then  living,  to  pay  and  divide  the  said 
rents  and  profits  of  the  said  farm  half-yearly,  as  soon  as  conveniently 
can  be  after  the  days  hereinbefore  appointed,  unto  and  equally 
amongst  all  such  of  the  children  born  in  my  lifetime,  or  within  twen- 
ty-one years  _after  my  death  of  the  said  jjjhn  ]\Iorris  AshfoFth, 
George"Xlorris  Ashforth,  and  Martha  Morris  Ashforth  who  shall  be 
living  oifthe  Lady  Day  ^rTVTicliaelmas  Day  precedmg~~such  payment 
and  division.  And  after  the  death  of  all  such  children  of  the  said 
John  Morris  Ashforth,  George  Alorris  Ashforth,  and  Martha  Morris 
Ashforth,  except  one,  I  devise  my  said  farm  and  all  my  said  real  es- 
tate  to  such 'surviving  child  and  the  heirs  of  his  or  her  body  in  tail, 
with  remainder^o  the  right  heir  of  John  Morris,  son  of  my  grandfa-  '  j  ^t,^ 
ther  Thomas  Morris."  The  testatrix  died  on  July  7,  1864.  Of  her 
three  children,  George  died  in  1870,  having  had  issue  three  children 
only,  the  present  plaintiffs ;  Martlia  died  without  issue  in  1877;  and 
Jolm  diecl  without  issue  m  1897.  The  question  for  decision  is  wheth- 
er the  limitation  in  tail  is  or  is  not  too  remote.  ~^  ' 

Property  mav  be  given  to  an  unborn  person  for  life  or  to  several 
unborn  persons  successively  for  life,  with  remainders  over,  provifled' 
that  sucli  remainders  be  mdeteasibly  vested  in  persons  ascertained  or 
necbssarilv  ascertainable  within  the  limits  prescribed  by  the  ruK 
against  perpetuities.  In  re  Hargreaves,  43  Ch.  D.  4U1 ;  iivans  v. 
Walker  (1876)  3  Ch.  D.  211.  Mr.  \\'ood  did  not  dispute  this,  but  ar- 
gued that  ina^smuch  as  one  of  t)-|^  tlirpp  p1ain|;ffg  ]-[iii^f  nprp^^pHK-  he 
tHe  survivor,  they  could  combine  to  release  or  destroy  the  right  of 
survivorship  and  take  the  property  at  c^nce.  Butthis  assumes  the  ex-"^ 
istence  of  a  present  estate  after  the  lite  estate^,  which  wil}  remain 
when  the  obnoxious  contingency  is  destroyed,  and  there  is  none  such ; 
the  only  estates  of  inheritance  are  contingent  interests  in  remainder. 

6  The  opinion  only  is  given. 


486  RULE  AGAINST  PERPETUITIES  (Part  4 

The  court  has  first  to  construe  the  will,  and  is  driven  to  conclude  that 
these  interests  are  void  for  perpetuity.  There  is,  therefore,  no  estate 
of  inheritance  in  existence  available  for  dealings  by  way  of  convey- 
ance or  otherwise,  and  nothing  is  left  but  the  three  life  estates.  The 
fallacy  lies  in  the  lack  of  appropriate  definition.  No  release  or  de- 
struction of  the  contingent  interest  would  be  of  any  avail.  What  is 
required  is  a  dealing  by  way  of  conveyance  of  all  the  three  contingent 
interests,  and  this  is  impossible,  because  they  have  been  declared 
void,  and  three  void  contingent  remainders  will  not  make  on^good^ 
vested  remainder.  Mr.  Wood  relied  on  a  passage  in  Lewis  on  Per- 
petuity, p.  164:  "A  perpetuity  is  a  future  limitation,  whether  execu- 
tory or  by  way  of  remainder  *  *  *  which  is  not  to  vest  until 
after  the  expiration  of,  or  will  not  necessarily  vest  within,  the  period 
fixed  and  prescribed  by  law  for  the  creation  of  future  estates  and  in- 
terests ;  and  which  is  not  destructible  by  the  persons  for  the  time  be- 
ing entitled  to  the  property  subject  to  the  future  limitation,  except 
with  the  concurrence  of  the  individual  interested  under  that  limita- 
tion." It  is  to  my  mind  plain  that  the  learned  author,  in  speaking  of 
destructibility,  is  referring  to  remainders  after  an  estate  tail;  but  in 
any  case  the  passage  does  not  help  JNlr.  Wood,  because  the  validity 
of  the  estate  which  he  wishes  to  create  must  depend  on  the  convey- 
ance of  the  ultimate  remainders;  the  persons  entitled  subject  to  that 
limitation  are  entitled  for  life  only.  ]Mr.  Wood  also  pressed  on  me  a 
dictum  of  Lord  Cranworth's  in  Gooch  v.  Gooch,  3  D.,'M.  &  G.  366, 
383.  I  think  that  if  the  whole  of  that  passage  is  read  it  is  plain  that 
the  Lord  Chancellor  was  really  thinking  of  a  joint  tenancy,  and  not  of 
a  gift  to  three  with  a  contingent  limitation  to  the  survivor  of  them. 
But,  however  that  may  be,  it  is  only  a  dictum ;  and  the  reasons  given 
are  not  easy  to  reconcile  with  the  judgments  of  the  Court  of  Appeal 
in  In  re  Hargreaves,  43  Ch.  D.  401,  and  London  and  South  Western 
Ry.  Co.  V.  Gomm,  20  Ch.  D,  562.  The  case  before  me  is  really  un- 
distinguishable  from  Garland  v.  Brown,  10  L.  T.  292,  before  Wood, 
V.  C,  where  there  was  a  gift  to  the  surviving  children  of  the  testator's 
surviving  child  for  life  in  equal  shares  as  tenants  in  common  with  re- 
mainder to  the  survivor  of  those  children  in  fee,  and  the  remainder 
in  fee  was  held  void  for  remoteness. 

Then  it  is  said  that  this  is  a  legal  contingent  remainder  sppnorted 
by  a  particular  estate  vested  m  trustees  during  the  lives  of  the  grand- 
cliildren  and  of  the  survivor  of  them,  and  this  was  not  disputed.  But 
the  plaintiffs  ^rgue  further  that  such  a  remainder  is  not  afYectedJiv: 
any  doctrine  of  remoteness,  except  tne_  rule  tnat  estates  cannot  be 
limited  to  unborn  persons  for  life  with  remainders  to  the  issue  of 
such  unborn  persons.  I  might  have  contented  myself  with  followjng 
KaVTj.'s  deciSlOri  itl  In  re  lMX»st.  4J  unr^Cg^  253ibut  it  is  gaidlhat 
this  \yas  only  tne  second  oFalternative  reason  for  his  judgment,  and  1 
haye  accordingTyTonsidered  the  point  for  mvself. 

"It  is  vefy"  difficult  to  say  wlien  the  conception  of  perpetuity  in  its 


Ch.  2)  INTERESTS  SUBJECT  TO  THE   RULE  487 

modern  meaning  first  appeared  in  our  courts.  There  is  no  doubt  that 
the  common  law  regarded  all  attempts  to  restrict  the  free  alienation  of 
property  with  extreme  disfavor.  As  is  stated  in  Mr.  Butler's  note  to 
Coke  on  Littleton,  342  b,  i.,  although  the  suspense  or  abeyance  of  the 
inheritance  (as  distinguished  from  the  freehold)  was  allowed  by  the 
common  law,  it  was  discountenanced  and  discouraged  as  much  as  pos- 
sible, and  modern  law  has  added  her  discouragement  of  every  con- 
trivance which  tends  to  render  property  inalienable  beyond  the  limits 
settled  for  its  suspense,  because  it  is  clear  that  no  restraint  on  aliena- 
tion would  be  more  effectual  than  a  suspense  of  the  inheritance.  He 
adds :  "The  same  principles  have,  in  some  degree,  given  rise  to  the 
well-known  rule  of  law,  that  a  preceding  estate  of  freehold  is  indis- 
pensably necessary  for  the  support  of  a  contingent  remainder;  and 
they  influence,  in  some  degree,  the  doctrines  respecting  the  destruc- 
tion of  contingent  remainders."  There  was  also  the  rule  that  an  es- 
tate by  purchase  cannot  be  limited  to  the  unborn  child  of  an  unborn 
child.  Whitby  v.  Mitchell  (1890)  44  Ch.  D.  85.  With  all  respect  to 
Kay,  J.,  I  do  not  think  that  much  reliance  can  be  placed  on  the  exist- 
ence of  an  independent  rule  of  law  forbidding  a  possibility  on  a  pos- 
sibility. See  Gray  on  Perpetuities,  p.  86,  and  Williams  on  Real  Prop- 
erty, 6th  ed.  p.  245.  The  phrase  seems  due  to  Lord  Coke's  unfortu- 
nate predilection  for  scholastic  logic,  and  may  possibly  be  a  pedantic 
and  inaccurate  reason  for  avoiding  remoteness.  See  Blamford  v. 
Blamford  (1615)  3  Bulst.  98,  108;  s.  c.  1  Roll.  Rep.  318,  321,  cited  in 
Gray  at  p.  86.  "Coke  moves  another  matter  in  this  case  on  Popham's 
opinion,  Coke  L,  Rector  de  Chedington,  that  a  possibility  on  a  possi- 
bility is  not  good,  for  here  in  our  case  is  a  possibility  on  a  possibility 
*  *  *  yet  it  seems  that  it  is  good,  for  if  Popham's  opinion  should 
be  law,  it  would  shake  the  common  assurances  of  the  land.  *  *  * 
But  I  agree  that  in  divers  cases  there  shall  not  be  a  possibility  upon 
a  possibility,  and  he  puts  the  diversities  in  Lampet's  Case  (1612)  10 
Rep.  46  b,  50  b."  It  seems  probable  that  contingent  remainders 
could  not  anciently  have  been  created  at  all :  see  Williams  on  Seisin, 
p.  190;  and  that  down  to  the  time  of  the  Commonwealth  the  usual 
mode  of  settlement  on  marriage  was  by  giving  vested  estates  tail  to 
living  persons,  and  not  estates  tail  to  unborn  children :  ibid.  189. 
Although,  therefore,  there  was  a  general  principle  that  alienation 
should  not  be  restricted  by  the  creation  of  estates  beyond  a  particular 
estate  for  life  with  a  remainder  in  fee,  or  in  tail,  I  can  find  no  trace  of 
any  statement  of  the  present  rule  in  terms  in  any  of  the  old  books. 
But  the  general  principle  was  well  established,  and  as  the  ingenuity  of 
real  property  lawyers  invented  new  devices  for  rendering  land  inalien- 
able for  as  long  a  time  as  possible,  it  became  necessary  to  mould  the 
expression  of  the  old  law  so  as  to  meet  new  emergencies.  Thus  in 
Cadell  V.  Palmer  (1833)  1  CI.  &  F.  372;  36  R.  R.  128,  the  House  of 
Lords  settled  the  question  of  the  extent  to  which  executory  limita- 
tions and  shifting  uses,  which  had  become  possible  under  the  Statute 


488  RULE  AGAINST   PERPETUITIES  (Part  4 

of  Uses,  could  be  lawfully  carried,  and  they  did  this,  not  by  creating 
any  new  law,  for  that  would  have  been  lejj^islation,  not  decision,  but 
by  applying  the  old  law  to  the  new  circumstances.     The  judges  who 
advised  the  House  supported  their  opinion  by  numerous  authorities, 
and  I  would  refer  in  particular  to  the  quotation  from  Lord  Kenyon's 
judgment  in  Long  v.  Blackall  (1796-97)  7  T.  R.  100,  102;  4  R.  R.  73: 
"The  rules  respecting  executory  devises  have  conformed  to  the  rules 
laid  down  in  the  construction  of  legal  limitations,  and  the  courts  have 
said  that  the  estate  shall  not  be  unalienable  by  executory  devises  for 
a  longer  time  than  is  allowed  by  the  limitations  of  a  common  law  con- 
veyance."   Here,  then,  is  an  authoritative  statement  in  terms  of  pre- 
cision of  the  rule  of  law  which  had  existed  for  centuries,  but  had  not 
been  theretofore  defined,  and  had  been  applied  from  time  to  time,  as 
occasion  arose,  by  judges  who,  without  formulating  the  precise  limits 
of  the  rule,  held,  as  Lord  Nottingham  said  in  the  Duke  of  Norfolk's 
Case  (1681)  3  Ch.  Cas.   14,  31 :    "If  it  tends  to  a  perpetuity,  there 
needs  no  more  to  be  said,  for  the  law  has  so  long  labored  against  per- 
petuities, that  it  is  an  undeniable  reason  against  any  settlement,  if  it 
can  be  proved  to  tend  to  a  perpetuity."    The  rule,  however,  was  only 
to  be  applied  to  cases  where  it  was  really  necessary  in  order  to  defeat 
remoteness,  and,  accordingly.  Lord  St.  Leonards  in  Cole  v.  Sewell, 
4  D.  &  War.  1,  s.  c.  2  H.  L.  C.  186,  65  R.  R.  668,  points  out  that  it 
has  no  application  to  remainders  limited  to  arise  after  an  estate  tail, 
because  they  are  destructible  by  barring  such  estate  tail,  and  are  no 
more  open  to  objection  than  the  estate  tail  itself;  and  this  is  the 
meaning  of  the  reference  to  destructibility  in  the  passage  that  I  read 
above  from  Lewis  on  Perpetuity,  p.  164.     But  this  reason  has  no  ap- 
plication to  contingent  remainders  not  so  limited  and  destructible ; 
nor  do  I  think  that  Lord  St.  Leonards  so  intended.     See  Sugden's 
Law  of  Property,  pp.  116-121,  and  Lord  Brougham's  speech  in  the 
same  case  in  the  House  of  Lords,  2  H.  L.  C.  at  p.  234,  where  he  puts 
this  ground  plainly  as  the  reason  for  his  observations.     It  would  be 
very  strange  indeed  that  Lord  St.  Leonards  should  have  referred  to 
the  "sacred  rule"  enunciated  in   Purefoy  v.  Rogers   (1669)  2  Wm. 
Saund.  768.  781,  n.  9,  that  no  limitation  shall  be  construed  as  an  ex- 
ecutory or  shifting  use  which  can  by  possibility  take  effect  by  way  of 
remainder — a  rule  which  probably  owes  its  origin  to  the  chance  of 
destruction  by  the  failure  of  the  particular  estate  incident  to  the  one 
and  not  to  the  other — and  should  at  the  same  time  have  afifirmed  that 
the  rule  against  perpetuities  had  no  application  to  such  contingent  re- 
mainders, although  they  might  exceed  the  limits  allowed  for  execu- 
tory limitations,  because  they  could  not  exceed  the  limits  of  perpetui- 
ty, for  the  proposition  is  self-contradictory.    Aa.smne  that  the  doctrine 
of_  the  de^'^trpi^tij^ilii-y  r.f  rnntnin-pyt  rpnininders  by  failure  nf  t]-|^  j2-^r- 
ticular  estateis  due  to  the  desire  of  tlie  courts  to  avoid  remoteness,  as 
Mr.  ijutler"^ggests.  it  does  not  follow  that  such  remamders  shcxiTd 
be  free  from  all  other  bonds!    Liability  to  destruction  for  a  particular 


Ch.  2)  INTERESTS  SUBJECT  TO  THE   RULE  489 

cause  at  or  before  a  griven  period  is  not  incompatible  with,  or  any 
ground  for  imm unity  from,  destruction  at  the  same  period  for  a  caus^ 
common  to"  all  other  inteTests,  executjory^  equitable,  or  otheruiseT 
whiOTrnay  lead  to  remoteness.  It  is  plain,  moreover,  that  the  couTEs 
have  acte3~TipoirThe  principle  that  the  rule  against  perpetuities  is  to 
be'appiied  where  no  other  sufficient  protection  against  remoteness  is 
attainably!  Thus,  inasmuch  as  equitable  contingent  remainders  never 
failed  for  want  of  a  particular  estate,  it  was  held  that  the  rule  must 
apply  to  them.  In  Abbiss  v.  Burney  (1881)  17  Ch.  D.  211,  the  gift 
was  to  trustees  on  trust  for  A.  for  life,  and,  after  his  death,  on  trust 
to  convey  to  such  son  of  his  as  should  first  attain  twenty-five.  Sir 
George  Jessel,  j\I.  R.,  said,  ibid.  230:  "Where  the  legal  fee  is  out- 
standing in  the  trustees,  that  doctrine  of  contingent  remainders 
which,  until  the  recent  statute,  prevented  contingent  remainders  from 
taking  effect  at  all  unless  they  vested  at  the  moment  of  the  termina- 
tion of  the  prior  estate  in  freehold,  has  no  operation,  and  on  that 
ground  I  think  that  this  appeal  should  be  allowed."  In  In  re  Trustees 
of  Hollis'  Hospital,  [1899]  2  Ch.  540,  the  late  Mr.  Justice  Byrne  held 
that  the  rule  against  perpetuity  applied  to  a  common  law  condition. 
He  says,  ibid.  552 :  "The  courts  have  first  to  find  what  is  the  common 
law — that  is,  the  principle  embodied  in  what  is  called  the  common 
law — and  then  to  apply  it  to  new  and  ever-varying  states  of  fact  and 
circumstances.  *  *  *  New  statutes  and  the  course  of  social  de- 
velopment give  rise  to  new  aspects  and  conditions  which  have  to  be 
regarded  in  applying  the  old  principles.  The  policy  of  the  law  against 
the  creation  of  perpetuities  was  certainly  asserted  at  a  very  early  date, 
as  was  also  the  policy  of  discountenancing  unrestricted  restraints 
upon  alienation."  In  Chudleigh's  Case  (1589-95)  1  Rep.  120  a  (the 
case  of  perpetuities),  the  court  defeated  an  attempt  to  make  the  Stat- 
ute of  Uses  serve  as  the  means  of  protecting  contingent  remainders 
from  destruction,  lest  lands  should  remain  too  long  in  settlement.  In 
Abbiss  v.  Burney,  17  Ch.  D.  211,  the  Court  of  Appeal  defeated  an 
attempt  made  by  vesting  all  the  legal  estate  in  the  property  in  trus- 
tees. The  present  attempt  is  made  by  vesting  a  legal  estate  pur  autre 
vie  in  trustees  and  limiting  the  contingent  remainders  as  a  legal  use. 
In  my  opinion,  the  court  is  equally  bound  to  defeat  this;  nor  can  I 
find  any  rule  of  law  or  decision  or  principle  to  the  contrary.  The 
opinion  of  the  late  Mr.  ChalHs  (Real  Property,  2d  Ed.,  pp.  174-177) 
is,  I  think,  sufficiently  displaced  by  Byrne,  J.'s  judgment  in  the  Hol- 
Hs'  Hospital  Case,  [1899]  2  Ch.  540,  and  that  of  the  late  Mr.  Joshua 
Williams  by  Gray  on  Perpetuities,  pp.  283-298 ;  and  the  conclusion  at 
which  I  have  arrived  is  supported  by  (in  addition  to  the  text-writers 
cited  in  that  case  and  in  In  re  Frost,  43  Ch.  D.  246)  an  argument  in 
the  first  edition  of  Jarman  on  Wills,  vol.  ii.  p.  727,  and  repeated  in 
some  of  the  later  editions,  by  Mr.  Serjeant  Stephen's  note  in  his  Com- 
mentaries. 8th  ed.  vol.  i.  p.  554,  and  by  Mr.  Gray's  excellent  Treatise 
on  Perpetuities.     The  rule  against  perpetuities  applies  to  all  contin- 


490  RULE   AGAINST  PERPETUITIES  (Part  4 

gent  equitable  limitatjons  of  real  estate  and  all  contingent  limitations 
of  pers7)nalty,  including  leasehoTdsT  It  would  cTf tainty  be  undesirable 
to  add  another  to  the  anomalies  that  "adorn  our  law^  as  I  should  sxxc= 
ceecTin  doing  if  I  held  that  the  rule  did  not  apply  to  legal  contingent^ 
remainders.  I  therefore  answer  the  first  question,  by  saying  that  the 
limitatioiTin  question  is  void  for  remoteness,  and  the  second  question 
in  the  nesfative.® 


WORTHING  CORPORATION  v.  HEATHER. 
(Chancery  Division.     L.  R.   [1906]  2  Ch.  532.) 

By  a  lease  dated  October  1,  1878,  Fanny  Heather  demised  to  the 
local  board  of  health  for  the  district  of  Worthing  some  meadow  land 
for  a  term  of  thirty  years  from  September  29,  1876,  at  the  yearly  rent 
ot  i6b,  and  the  board  for  themselves,  their  successors  and  assigns, 
covenanted  that  they  would  not  during  the  term  use  the  demised 
premises  or  any  part  thereof  for  any  purpose  other  than  that  of  a  pub- 
lic park  or  pleasure  grpunrl. 

"^i'he  lease  contained  a  proviso  as  follows :  "Provided  always  And 
it  is  hereby  agreed  and  declared  that  in  case  the  said  board  their  suc- 
cessors or  assigns  paying  the  said  rent  hereby  reserved  and  observing 
performing  and  keeping  all  the  covenants  on  their  part  herein  con- 
tained shall  be  desirous  at  any  time  during  the  said  term  hereby  grant- 
ed to  purchase  the  fee  simple,  and  inheritance  of  the  said  premises  at 
the  sum  of  il,325  and  of  such  their  desire  shall  give  to  the  said  Fanny 
Heather  her  heirs  or  assigns  six  calendar  months  previous  notice  in 
writing  expiring  at  the  end  of  any  half  year  of  the  said  term  then  and 
in  such  case  the  said  Fanny  Heather  her  heirs  or  assigns  shall  deliver 
to  the  said  board  their  successors  or  assigns  a  copy  of  the  abstract  of 
title  to  the  same  premises  which  was  delivered  to  her  on  the  occasion 
of  her  purchase  thereof  such  abstract  commencing  with  indenture  of 
30th  J\Iay  1832  between  Richard  Lindup  and  Jane  his  wife  of  the  first 
part  George  Newland  of  the  second  part  Frances  Lindup  of  the  third 
part  and  Richard  Newland  and  James  Stubbs  of  the  fourth  part  and 
no  prior  or  other  title  shall  be  required.  And  will  on  payment  by  the 
said  board  their  successors  or  assigns  of  the  said  sum  of  £1,325  to- 
gether with  interest  thereon  at  the  rate  of  £5  per  cent,  per  annum 
from  the  expiration  of  such  notice  until  payment  and  of  all  rent  then 
accrued  execute  a  proper  conveyance  and  assurance  of  the  said  prem^ 
ises  and  the  inheritance  thereof  in  fee  simple  unto  the  said  board  their 
successors  and  assigns  or  as  they  shall  direct  such  conveyance  or 
assurance  to  contain  sinf^JAr  covenants  on  the  part  of  the  said  board 
their  successors  or  assigns  with  the  said  Fanny  Heather  her  heirs 
and  assigns  to  those  hereinbefore  contained  relative  to  the  user  of  the 

0  In  the  case  of  In  re  Frost,  43  Ch,  Div,  246,  253,  referred  to,  the  will 
conferring  the  legal  future  interests  was  dated  March  ID,  1S70. 


Ch.  2)  INTERESTS   SUBJECT  TO   THE   RULE  491 

said  premises  solely  as  a  public  park  walk  or  pleasure  ground  and  to 
the  erection  thereon  of  no  other  erection  or  building  except  such 
lodge  and  other  buildings  as  are  hereinbefore  referred  to  (such  cove- 
nants being  so  framed  as  that  the  burden  thereof  shall  so  far  as  is 
possible  run  with  the  said  premises)." 

On  August  25,  1890,  the  plaintiffs  were  incorporated  by  Royal  char- 
ter, and  succeeded  under  section  310  of  the  Pubhc  Health  Act  1875,  to 
all  the  property  of  the  local  board  of  health.  They  continued  to  use  the 
land  as  a  public  park.  Mrs.  Heather  died  in  1902,  having  by  her  will 
devised  all  her  real  and  residuary  personal  estate  to  C.  H.  Heather 
and  V.  J.  Heather  in  equal  shares,  and  appointed  J.  Goldsmith  and 
E.  Sayers  executors. 

On  August  17,  1905,  the  plaintiffs  served  on  the  devisees  notice  of 
their  desire  to  exercise  the  option  given  to  them  by  the  lease  by  pur- 
chasing the  fee  simple  ot  the  demised  premises  for  £1,325  upon  the 
terms  and  conditions  mentioned  in  the  lease. 

The  devisees  repudiated  their  obligation  to  comply  with  the  notice, 
and  insisted  that  the  option  was  void  as  infringing  the  rule  against 
perpetujTies.  The  corporation  there upoir"bfought  this  action  agamst 
the  devisees  and  the  surviving  executor,  and  asked  for — (1)  a  decla- 
ration that  they  were  entitled  to  specific  performance  of  the  agreement 
constituted  by  the  lease  and  the  notice  for  the  sale  to  them  of  the  fee 
simple  of  the  premises,  and  consequential  relief  on  the  footing  of  such 
declaration ;  (2)  if  for  any  reason  the  agreement  could  not  be  specif- 
ically performed,  damages  against  the  estate  of  Mrs.  Heather  for 
breach  of  covenant;  (3)  in  default  of  admission  of  assets  by  the  exec- 
utor, administration  of  the  real  and  personal  estate  of  Mrs.  Heather, 
and,  so  far  as  might  be  necessary,  to  follow  her  assets  into  the  hands 
of  the  defendants  Heather. 

Warrington,  J.  This  is  an  action  for,  first,  specific  performance  of 
a  certain  contract  taken  in  the  form  of  an  option  to  purchase  contain- 
ed in  a  lease ;  secondly,  and  alternatively,  for  damages  for  breach  of 
that  contract.  The  contract  is  not  denied.  The  defences  to  it  are 
pi^rely  legal.  The  first  defence  is  that,  so  far  as  it  is  an  action  for 
specific  performance,  it  cannot  be  enforced  because  in  equity,  in  which 
court  alone  specific  performance  can  be  granted,  it  creates  an  in- 
terest in  the  land,  and  that  interest  is  void  as  infringing  the  rule 
against  perpetuities.  The  action  is  defended,  so  far  as  it  is  an  action 
for  damages,  on  the  ground  that  it  is  a  contract  which  tends  to  bring 
about  an  infringement  of  the  rule  against  perpetuities,  and,  therefore, 
cannot  be  enforced  in  a  court  of  law  any  more  than  it  could  be  en- 
forced in  a  Court  of  Equity  in  the  way  of  specific  performance.  [His 
Lordship  stated  the  facts,  and  continued  :] 

Now  first  with  regard  to  the  claim  for  specific  performance :  If  the 
covenantee  had  been  an  individual,  and  if  the  purpose  for  which  the 
landjvns  to  he  crmntf^fl  linrl  nnf  been,  as  it  is.  a  charitable  purpose — a 
point  with  which  I  shall  have  to  deal  directly — it  is  admitteJ  that 


49'3  RL'LE  AGAINST   PERPETUITIES  (Part  4 

after  the  decisions  of  the  Court  of  Appeal  in  the  case  of  the  London 
and  South  Western  Rv.  Co.  v.  Gomm.  20  Ch.  DT  562,  and  my  own 
decision  in  Woodnll  v.  Cliff  on  ^  [10Q5|  2  Ch.  2j7.  it  would  he  jnipos-^ 
sible  for  this  court  to  hold  that  that  contract  could  be  specificallyen- 
forcecH  It  is  said,  however— and  I  propose  to  deal  with  this  point  first 
-^on"*the  part  of  the  plaintiffs  that  the  purpose  for  which  this  land 
was  to  be  conveyed  was  a  charitable  purpose,  and,  therefore,  notwith- 
standing the  fact  that  the  interest  w^iich  flie  deed  creates  would  in  an 
ordinary  case  be  void  for  remoteness,  the  object  being  charity,  it 
would  not  be  so  void.  In  my  opinion  no  distinction  can  be  drawn  on 
that  ground  between  this  case  and  the  ordinary  case  of  a  coiitract 
with"  an  individuaT.  Although  the  interest  of  the  charity  is  created  by 
the  contract,  it  does  not  become  effective  until  the  happening  of  a 
future  event,  and  it  is  the  very  postponement  of  its  effectiveness  which 
renders  it  obnoxious  to  the  rule  against  perpetuities.  In  my  judg- 
ment the  case  in  this  aspect  of  it  is  undistinguishable  from  the  case 
of  a  limitation  to  an  individual  followed  by  a  limitation  to  a  charity, 
void  because  it  is  not  to  take  ettect  until  a  tune  outside  the  limits  of 
the  rule  against  perpetuity.  I  think  it  is  clear  in  that  case  the  limita- 
tion would  be  void  notwithstanding  that  it  is  a  limitation  to  a  charity. 
In  the  case  of  IhTe  ijowen,  [1893]  2  Ch.  491,  it  was  decided  by  Stir- 
ling, J. — for  this  purpose  it  is  enough  to  read  the  head-note — that 
"The  principle  established  bv  Christ's  Hospital  v.  Grainger  (1849)  1 
Mac.  &  G.  460,  and  In  re  Tyler,  [1891]  3  Ch.  252,  that  the  rule 
against  perpetuities  has  no  application  to  the  transfer  in  a  certain 
event  of  property  from  one  charity  to  another  does  not  extend  to 
cases  where  (1)  an  immediate  gift  in  favor  of  private  individuals  is 
followed  by  an  executory  gift  in  favor  of  charity,  or  (2)  an  immediate 
gift  in  favor  of  charity  is  followed  by  an  executory  gift  in  favor  of  pri- 
vate individuals."  The  same  principle  is  illustrated  by  a  subsequent 
case  of  In  re  Lord  Stratheden  and  Campbell,  [1894]  3  Ch.  265. 
There  the  testator  bequeathed  an  annuity  of  ilOO  to  be  provided  to 
the  Central  London  Rangers,  a  volunteer  corps,  on  the  appointment 
of  the  next  lieutenant-colonel.  It  was  held,  first,  that  that  bequest 
was  a  charitable  bequest ;  and,  secondly,  that  the  gift  was  void  because 
it  infringed  the  rule  against  perpetuities.  There,  as  in  the  present 
case,  immediately  on  the  death  of  the  testator,  just  as  here  on  the  ex- 
ecution of  the  deed,  the  charity  obtained  an  interest — that  is  to  say, 
they  were  entitled  if  it  were  not  void  to  this  bequest ;  but  the  bequest 
in  that  case,  as  the  interest  in  this  case,  was  to  become  effective  only 
on  the  happening  of  a  future  event,  wdiicli  was  too  remote.  It  seems 
to  me  that  that  case  is  a  direct  authority  against  the  contention  of  the 
plaintiffs,  foundtjd  Oil  the  ait4unreiit  lllctt  the  covenanteein  this  case 
was'a'cliarityT'  ""  "^ 

7  Contra:    Hollander  v.   Ceiitial  Metal  Ca,   109  Md.   131,   71   Atl.   442,   23 
L.  R.  A.  (N.~^.)  1135  (where  the  lessee^s  option  to  purchase  was  not  even 


Ch.  2)  INTERESTS   SUBJECT  TO   THE   RULE  493 

Now  I  come  to  the  second  aspect  of  the  action,  in  which  it  is  a 
mere  action  at  common  Faw  for  damages  for  breach  of  the  contract. 
Would  that  contract  have  been  void  at  common  law?  That  is  to  say7 
was  it  such  a  contract  that  a  court  of  law  would  not  entertain  an 
action  for  damages  for  its  breach?  It  is  a  contract  to  convey  land  to 
the  purchaser  upon  the  happening  of  an  event  which  might  occur  at  a 
more  remote  period  than  lives  in  being  and  twenty-one  years  after- 
wards. In  the  act  of  making  such  a  conveyance  there  is  nothing  il- 
legal— that  is  to  say,  if  the  covenantor  chose  in  the  year  1898  to  con- 
vey this  land  to  the  corporation  of  Worthing  she  would  have  been 
performing  a  perfectly  legal  act.  The  act,  therefore,  which  the  cove- 
nant binds  the  covenantor  to  perform  is  not  an  illegal  act.  What 
alone  is  illegal  is  the  limitation  of  land  which  is  to  take  efifect  at  a 
pcruHl-LOo  reiiioTe.  How  is  it  tn^ll  LilUL  LUliLidLl,  wIiIlIi  ism  form  a 
mere  personal  contract  that  the  covenantor  will  do  such  an  act,  be- 
comes a  limitation?  In  a  court  of  common  law  it  would  not  have 
that  effect.  So  far  as  regards  the  jurisdiction  in  a  court  of  common 
law,  the  covenantor  might  convey  away  the  land  notwithstanding  the 
covenant.  He  might  devise  it ;  he  might  allow  it  to  descend,  and  the 
covenantee  would  have  no  means  of  getting  the  land  either  from  the 
grantee  or  from  the  devisee  or  from  the  heir-at-law.  The  only  right 
which  the  covenantee  would  have  had  in  a  court  of  common  law  would 
have  been  to  recover  damages.  In  a  Court  of  Equity  the  covenant  is 
held  to  afifect  the  conscience  of  the  covenantor  in  such  a  way  that  he 
cannot  convey  away  the  land  to  any  person  who  is  in  the  same  posi- 
tion as  he  is  himself,  that  is  to  say,  to  a  person  who  is  not  a  purchaser 
for  value  without  notice ;  and  by  the  operation  of  the  doctrine  of  spe- 
cific performance  the  covenantee  in  a  Court  of  Equity  is  regarded  as 
having  an  actual  interest  in  the  land  to  which  the  covenant  applies. 
In  other  words,  in  the  contemplation  of  a  Court  of  Equity,  the  con- 
tract, being  for  valuable  consideration,  is  executed  to  the  extent  to 
which  the  interest,  which  ought  under  that  contract  to  be  created  by 
the  subsequent  act  on  the  part  of  the  covenantor,  is  created  by  the 
covenant  itself. 

Now  there  is  no  conflict  between  the  doctrines  of  law  and  equity  in 
this  respect.  The  relief  given  in  a  Court  of  Equity  is  merely  relief 
supplemental  to,  and  in  most  cases  more  efifectual  than,  the  relief 
given  at  common  law,  but  there  is  no  conflict  between  the  doctrines 
of  law  and  equity  so  as  to  compel  one  to  regard  this  covenant  merelv 
as  creating  a  limitation  upon  the  equitable  doctrines.  It  remains  since 
the  Judicature  Act  as  it  did  before — it  remains  a  common  law  con- 
tract  capable  of  being  enforced  In  a  court  of  common  law  without""" 

held  by  the  lessee  for  charity) ;  Blakeman  v.  Miller,  136  Cal.  IBS,  68  Pae. 
587,  89  Am.  St.  Rep.  120  (where  a  lessee  for  L'U  years  was  given  au  option  to 
purchase  at  any  time  within  the  term  after  15  years,  hut  where  the  statu- 
tory rule  against  perpetuities  made  no  allowance  for  vesting  within  any 
gross  term  of  years). 


494  RULE  AGAINST  PERPETUITIES  (Part  4 

reference  to  the  laws  of  equity.  Realizing  that  difficulty,  the  defend- 
ants are  compelled  to  rest  their  case  upon  the  contention  that  the  con- 
tract, though  not  in  a  court  of  common  law  efifecting  that  which  the 
law  regards  as  against  public  policy — namely,  the  tying  up  of  land 
for  a  period  beyond  that  allowed  by  the  rule — indirectly  tends  to 
bring  about  the  same  result.  It  is  there  that  I  join  issue  with  the  de- 
fendants. It  seems  to  me  that,  rightly  considered,  the  contract  does 
not  tend  to  bring  about  that  result.  It  is  quite  true  that  the  cove- 
nantor may  if  he  pleases  carry  it  out,  and  it  may  be  to  his  advantage 
to  do  so,  but  he  is  not  compelled  to  carry  it  out.  It  seems  to  me  that 
that  argument  depends  on  this  fallacy.  It  is  not  in  my  opinion  the 
contract  which  is  void  because  it  infringes  the  rule  against  perpetui- 
ties,  but  It  IS  tti'e  hmitation  which,  by  the  operation  of  the  doctrines 
of  the  Court  of  Equity,  it  is  the  efifect  of  the  contract  to  create,  that  is 
void.  The  contract  remains  a  valid  contract  in  everyTiTspect,  but  it 
is  the  limitation  it  creates  in  the  contemplation  of  the  Court  of  Equity, 
and  it  is  that  alone,  which  is  void.  It  seems  to  me,  therefore,  that  in 
principle  there  would  have  been  in  an  old  court  of  common  law  before 
the  Judicature  Act  no  defence  to  this  action ;  and  further,  that  in  this 
court  also,  since  the  Judicature  Act,  there  is  no  defence,  because  for 
this  purpose  the  court  is  sitting  as  a  court  of  common  law. 

Now,  is  there  any  authority  which  compels  me  to  say  that  that 
opinion  w^hich  I  have  already  formed  on  principle  is  not  the  correct 
opinion?  I  have  been  referred  to  three  cases  reported  in  2  Vernon — 
a  case  of  Freeman  v.  Freeman,  2  Vern.  233,  a  case  of  Jervis  v.  Bruton, 
2  Vern.  251,  and  the  case  of  Collins  v.  Plummer,  2  \'"ern.  635.  The 
only  one  of  those  three  which  in  any  way  helps  the  defendants  is 
Jervis  v.  Bruton.  The  case  is  very  shortly  reported,  and  the  report  is 
in  these  terms :  "John  Morris  settles  land  on  his  daughter  and  the 
heirs  of  her  body,  remainder  to  his  own  right  heirs,  and  takes  a  bond 
from  the  daughter  not  to  commit  waste ;  the  daughter  having  levied 
a  fine,  and  afterwards  committing  waste,  the  bond  was  put  in  suit." 
The  only  report  of  the  judgment  is  this :  "Per  curiam.  An  idle  bond, 
and  decreed  to  be  delivered  up  to  be  cancelled ;  and  like  Poole's  Case, 
cited  in  the  case  of  Tatton  v.  Mollineux  (1610)  Sir  F.  Moore,  809, 
where  a  recognizance  conditioned  that  the  tenant  in  tail  should  not 
suffer  a  recovery,  is  decreed  to  be  delivered  up,  as  creating  a  perpetu- 
ity." It  is  very  difficult  to  understand  that.  No  reasons  are  given  for 
the  finding  that  it  was  an  idle  bond.  There  is  a  note  which  throws 
some  light  on  it  by  the  editor  of  the  edition  of  Vernon's  Reports 
which  I  have  before  me.  It  is  edited  by  John  Raithby,  and  that  note 
states  this :  "The  settlement  was  on  the  daughter  in  fee,  and  on  her 
marriage  with  the  plaintiff  who  had  survived  her  were  settled  in  trust 
to  the  use  of  the  plaintiiif  and  his  wife  (the  daughter  of  the  said  John 
Morris)  for  life,  to  the  use  of  their  heirs  begotten  by  the  plaintifif,  and 
for  default  of  such  issue,  to  the  heirs  of  the  plaintifT;  the  plaintiff's 
wife  died  without  having  had  any  issue,  and  the  decree  declared  that 


Ch.  2)  INTERESTS   SUBJECT   TO    THE    RULE  495 

the  bond  in  question  had  been  ill-obtained  against  the  said  plaintiff's 
wife,  and  that  the  plaintiff  was  seised  in  fee ;  and  decreed  the  bond  to 
be  delivered,  and  the  defendants  to  pay  costs  at  law  (they  having  pro- 
ceeded on  the  bond)  and  in  this  suit."'  It  seems  to  me  that  that  note 
throws  some  light  on  the  report,  and  that  the  reason  of  the  finding 
was  not  that  which  at  first  sight  would  appear  to  be  the  reason  if  one 
were  to  take  the  report  by  itself.  But  in  the  case  of  Collins  v.  Plum- 
mer,  we  have  a  case  on  the  other  side,  which  may  fairly  be  set  against 
Jervis  v.  Bruton,  even  if  Jervis  v.  Bruton  is  to  be  regarded  on  the 
point  which  I  have  before  me.  In  that  case  the  head-note  is  this : 
"A.  on  his  marriage  settles  land  to  the  use  of  himself  for  life,  then  to 
the  wife  for  life,  remainder  to  the  heirs  of  his  body  begotten  on  the 
wife,  remainder  to  his  own  right  heirs ;  and  covenants  in  the  settle- 
ment not  to  bar  the  entail,  nor  suffer  a  recovery ;  and  having  one 
daughter,  to  whom  on  her  marriage  he  had  given  a  good  portion ;  he 
suffers  a  recovery,  and  by  will  devises  the  estate  to  his  daughter  for 
life,  and  to  her  first  8zc.  sons  in  tail,  with  remainders  over.  On  a  bill 
for  a  specific  performance  of  the  covenant,  the  court  would  not  decree 
it,  but  leave  the  party  to  recover  damages  at  law,  for  breach  of  the 
covenant."  It  is  plain,  therefore,  that  the  court  in  that  case  did  not 
hold  the  covenant  to  be  void  at  law,  because  it  is  difficult  to  under- 
stand why,  if  the  court  had  so  held,  it  did  not  exercise  the  further 
equitable  jurisdiction  of  granting  an  injunction  to  restrain  proceed- 
ings at  law  on  the  covenant,  when  it  refused  specific  performance.  It 
seems  to  me  that  the  court  in  that  case  regarded  the  covenant  as  a 
valid  covenant  at  law,  although  it  could  not  be  enforced  specifically 
in  equity. 

Another  authority  which  has  been  referred  to  is  the  case  which  I 
have  already  mentioned  of  London  and  South  Western  Ry.  Co.  y. 
Gomm,  20  Ch.  D.  562.  That  was  an  action  in  equity  only  to  enforce 
a  somewhat  similar  contract  to  the  present  one.  It  was  an  action,  not 
brought  against  the  covenantor  or  against  the  legal  personal  repre- 
sentative of  the  covenantor,  but  brought  against  the  person  in  whom 
the  land  affected  by  it  was  then  vested.  It  was,  therefore,  an  action 
which  could  not  have  been  brought  at  common  law,  and  was  capable 
only  of  being  founded  on  the  equitable  doctrine  of  specific  perform- 
ance. Kay,  J.,  before  whom  the  matter  first  came,  said  this,  20  Ch. 
'D.  576:  "A  contract  to  buy  or  sell  land  and  covenants  restricting  the 
use  of  land  though  unlirfiited,  are  not  void  fonjierpetiiitv-  In  these 
latter  cases  the  contracts  do  not  run  with  the  land,  and  are  not  bind- 
ing upon  an  assign,  unless  he  takes  with  notice.  They  are  not  prop- 
erly speaking  estates  or  interest  in  land,  and  are  therefore  not  within 
the  rule" ;  and  he  held  that  the  contract  did  not  create  an  interest  in 
the  land.  On  that  last  finding  his  decision  was  reversed  by  the  Court 
of  Appeal ;  but  the  Court  of  Appeal  did  not  for  a  moment  throw  any 
doubt  upon  this — that  the  rule  against  perpetuities  is  a  rule  which  is 
applicable  to  property  and  not  a  rule  which  is  applicable  to  contract, 


496  RULE   AGAINST   PERPETUITIES  (Part   4 

and  that,  but  for  the  fact  that  what  was  sought  to  be  enforced  was  an 
interest  in  land  which  had  been  created  by  the  contract,  the  rule 
against  perpetuities  would  not  have  had  any  reference  to  that  case. 
It  is  quite  true  that  the  judges  in  the  Court  of  Appeal  did  use  expres- 
sions to  the  efifect  that  the  contract  was  void,  but  such  expressions  as 
that  must  be  taken  to  be  used  in  reference  to  the  facts  of  the  case 
which  was  before  them ;  and  they  had  not  to  consider  any  such  ques- 
tion as  that  which  I  have  to  consider,  namely,  whether  an  action  for 
damages  at  law  could  have  been  brought  upon  the  contract.  That 
some  such  idea  was  in  the  mind  of  the  Master  of  the  Rolls  I  think 
appears  from  the  passage,  where  he  says  this,  20  Ch.  D.  580:  "If  then 
the  rule  as  to  remoteness  applies  to  a  covenant  of  this  nature,  this 
covenant  clearly  is  bad  as  extending  beyond  the  period  allowed  by  the 
rule.  Whether  the  rule  applies  or  not  depends  upon  this  as  it  appears 
to  me,  does  or  does  not  the  covenant  give  an  interest  in  the  land? 
If  it  is  a  bare  or  mere  personal  contract  it  is  of  course  not  obnoxious 
tcTthe  riile  "but  in  flraT~ca."Fe~it  TS'Tnrpossible^ fo' see  hovv'the  present 
ap^pellant  can  be  bound.  He  did  not  enter  into  the  contract  but  is 
only  a  purchaser  from.  Powell  who  did.  Ifjt  is  a  mere  personal  con- 
tract  it  cannot  be  enforced~against  the  assignee.  Therefore  the  com-"" 
pany  must  admit  that  it  somehow  binds  the  land.  But  if  it-binds  the 
land  it  creates  an  equitable  interest  in  the  land.  The  right  to  call  for 
a  conveyance  of  the  land  is  an  equitable  interest  or  equitable  estate. 
In  the  ordinary  case  of  a  contract  for  purchase  there  is  no  doubt 
about  this,  and  an  option  for  repurchase  is  not  different  in  its  nature. 
A  person  exercising  the  option  has  to  do  two  things,  he  has  to  give 
notice  of  his  intention  to  purchase  and  to  pay  the  purchase  money, 
but  as  far  as  the  man  who  is  liable  to  convey  is  concerned,  his  estate 
or  interest  is  taken  away  from  him  without  his  consent,  and  the  right 
to  take  it  away  being  vested  in  another  the  covenant  giving  the  option 
must  give  that  other  an  interest  in  the  land."  Then  he  goes  on  to 
decide  that  in  that  view,  giving  an  interest  in  land,  the  contract  is  void 
or  ineffectual ;  but  the  Master  of  the  Rolls  in  that  case  distinguishes 
between  the  personal  contract  and_that  which  gives  an  interest  in 
land,  ancFTFls  iiT  thi^  laTter  lispect_  only  that  he  holds  the  contract 
to  be  void.'"" It  seems  to  me,  therefore,  that,  sittirig""here  in  this  part  of 
the  action  to  administer  the  common  law,  I  must  hold  that  the  cove- 
nant is  a  valid  covenant,  and  that  the  plaintififs  are  entitled  to  recover 
damages  for  its  breach  against,  of  course,  the  estate  of  the  original 
covenantor. 

It  has  been  agreed  on  all  hands  that  at  the  trial  evidence  should  not 
be  given  as  to  the  amount  of  damages,  and  I  must  therefore  direct  an 
inquiry  as  to  the  damages,  and  in  default  of  admission  of  assets  there 
must  be  the  usual  decree  for  administration  of  the  real  and  personal 
estate  of  Mrs.  Heather. 


Ch.  3)  EESTRAINT   ON    ALIENATION  49( 


CHAPTER  III 

THE  RULE  AGAINST  PERPETUITIES  DISTINGUISHED 
FROM  THE  RULE  WHICH  MAKES  VOID  RESTRAINTS 
ON  ALIENATION.  AND  PROVISIONS  REQUIRING  A 
TRUSTEESHIP  (OTHERWISE  VALID)  TO  BE  EFFEC- 
TIVE AT  TOO  REMOTE  A  TIME 


In  re  RIDLEY. 
BUCKTON  V.  HAY. 

(Chancery  Division,  1879.     11  Ch.  Div.  645.) 

Francis  Ridley,  by  his  will,  dated  the  8th  of  January,  1863,  directed 
his  trustees  to  invest  a  fund  in  the  securities  thereby  authorized,  and 
to  stand  possessed  of  a  moiety  of  such  securities  upon  trust  to  pay 
the  interest  thereof  to  his  njece  Alice  Ridley  for  her  life,  and  after 
her  death,  in  trust  for  all  and  every  the  children  or  child  of  the  said 
Alice  Ridley  as  should  be  livino:  at  the  time  of  her  death,  and  the  is- 
sue then  living  of  such  of  them  as  should  have  died  m  ner  lifetime,  in 
equal  shares,  such  issue  to  take  their  respective  parents'  shares;  and 
in  case  there  should  be  no  child  of  the  said  Alice  Ridley,  or  no  child 
or  issue  who  should  attain  a  vested  interest  in  the  said  moiety,  then  in 
trust  for  such  person  or  persons  as  the  said  Alice  Ridley  should, 
whether  covert  or  sole,  by  will  appoint ;  and  in  default  of  such  ap- 
pointment in  trust  for  her  next  of  kin  who  should  be  living  at  the  time 
of  her  death  and  such  default  or  failure  of  her  issue  as  aforesaid, 
according  to  the  Statutes  of  Distribution.  And  the  testator  directed 
that  his  trustees  should  invest  the  sum  of  £4000  in  the  securities  au- 
thorized by  his  will,  and  stand  possessed  thereof  in  trust  to  pay  the 
interest  thereof  to  his  niece  IMary  Cooper  during  her  life,  and  after 
her  death  upon  the  same  trusts  in  favor  of  the  children  or  issue  or 
parties  claiming  under  any  will  of  the  said  ]^Iary  Cooper  in  all  re- 
spects as  were  thereinbefore  declared  concerning  the  securities  be- 
queathed in  trust  for  the  children  of  the  said  Alice  Ridle3^  And  the 
testator,  after  making  other  bequests,  proceeded  as  follovv's :  "Provid- 
ed, also,  and  my  will  further  is  that  the  several  legacies  and  bequests 
whether  of  income  or  principal  hereby  given  to  or  for  the  benefit  of 
any  legatees,  being  females,  shall  be  for  the  respective  sole  and  separate 
use  independent  of  and  free  from  the  debts,  control,  or  engagements 
of  any  husband  or  husbands  whomsoever,  and  that  the  receipts  ol  suth 


lalesPeop. — 32 


498  RULE  AGAINST  PERPETUITIES  (Part  4 

legatees  respectively,  whether  covert  or  sole,  shall  be  good  and  sufficient 
discharges  to  my  trustees,  but  not  so  as  to  enablesuch  legatees  re- 
spectively to  anticipate,  charge,  seTt;~and—dt5ptiSe7'or  otherwise  en- 
cumber  sucli  legacies  aiid  bequests,  or  the  annual  income  thereof,  or 
any  part  thereof  respectively." 

The  testator  died  on  the  1st  of  May,  1863. 

In  1864  a  decree  was  made  for  the  administration  of  the  testa- 
tor's estate,  the  plaintiffs  being  some  of  his  next  of  kin,  and  the  de- 
fendants the  trustees  of  the  will,  who  transferred  into  court  a  sum 
of  i4200  5s.  2d.  Consols  representing  the  legacy  bequeathed  in  favor 
of  Mary  Cooper,  and  the  income  of  the  fund  was  paid  to  her  dur- 
ing her  life. 

Mary  Cooper  died  in  1878,  having  had  eight  children,  six  of  whom 
died  in  her  lifetime  without  having  been  married.  The  remaining  two, 
daughters,  survived  their  mother.  They  were  born  in  the  testator's 
lifetime  and  had  attained  twenty-one  and  married.  Both  their  hus- 
bands were  now  living. 

This  was  a  petition  presented  by  the  two  married  daughters  by  their 
next  friend,  praying  that  the  fund  in  court  might  be  paid  out  to  them 
in  moieties  on  their  separate  receipts. 

The  husbands  were  made  respondents  to  the  petition. 

The  question  was  whether  the  restraint  on  anticipation  was  void  as 
transgressing  the  law  against  perpetuities. 

ChittyTH.  C,  and  (Jswaid,  for  the  petitioners.  We  submit  that  the 
restraint  on  anticipation  is  void  as  infringing  the  rule  against  per- 
petuities though  the  remainder  of  the  gift  is  good.  The  petitioners 
are,  therefore,  entitled  to  the  fund  absolutely,  discharged  from  the 
restraint. 

[JESSEL,  M.  R.  Why  should  a  restraint  on  anticipation  be  void?  It 
is  only  a  mode  of  enjoyment.] 

It  has  been  held  that  a  restraint  on  anticipation  in  a  gift  or  appoint- 
ment  which  may  ijicludFunborqchildrenTs  void,  as  being  too  remote : 
Armitage  v.  Coates,  35  Beav.  1 ;   In  re  Cunynghame's  SettlenientTXaw^ 
Rep.  11  Eq.  324;   In  re  Michael's  Trusts,  46  L.  J.  (Ch.)  651. 

[Jessel,  M.  R.  The  question  is,  whether  a  restraint  on  anticipa- 
tion is  not  an  exception  to  the  general  rule  against  perpetuities  and 
remoteness,  following  out  the  legal  principle  that  property  shall  not  be 
inalienable.] 

No  exception  has  yet  been  allowed  against  the  rule  of  perpetuities. 

[JessEL,  M.  R.  The  rule  against  perpetuities  is  that  you  shall  not 
make  property  absolutely  inalienable  beyond  a  certain  period.  It  is 
only  a  rule  in  favor  of  alienation.] 

In  Thornton  v.  Bright,  2  My.  &  Cr.  230,  Lord  Chancellor  Cotten- 
ham  held  that  an  appointment  by  a  father  under  his  marriage  settle- 
ment to  his  married  daughter  for  her  separate  use,  without  power  of 
anticipation,  was  a  good  appointment  to  the  extent  of  the  separate 
use,  and  that  decision  was  followed  by  Lord  Hatherley,  when  Vice- 


Ch.  3)  RESTRAINT   ON   ALIENATION  499 

Chancellor,  in  Fry  v.  Capper,  Kay,  163,  where  he  held  that  the  re- 
straint on  anticipation  was  void  and  might  be  rejected,  though  the 
separate  use  might  be  sustained. 

[Jessel,  M.  R.  The  judges  do  not  seem  to  have  considered  the  real 
point.  If  a  restraint  on  anticipation  is  an  infringement  of  the  rule 
against  perpetuities,  a  father  would  be  prevented  from  appointing  to 
his  children,  under  a  settlement,  in  a  way  most  beneficial  to  his  daugh- 
ters.] 

If  the  rule  is  broken  into  at  all,  it  is  difficult  to  see  where  it  is  to 
stop. 

[JESSEL,  M.  R,  The  question  is  whether  this  is  not  to  be  the  excep- 
tion to  the  rule.  Why  should  not  a  father  appoint  to  his  daughters 
in  a  way  most  beneficial  to  them,  that  is,  appoint  in  such  a  way  that 
the  daughters  and  not  their  husbands,  who  are  not  the  objects  of  the 
settler's  bounty  at  all,  shall  have  the  benefit?  The  restraint  on  antici- 
pation was  thought  so  beneficial  that  it  brokelnto  the  general  law 
agamst  inalienability ;  that  is  to  say,  all  property  was  to  be  alienable 
except  a  married  w^oman^  '       " 

The  authorities  are  certainly  against  a  restraint  on  anticipation  be- 
in^  imposed  upon  a  class  of  persons  some  of  whom  may  possibly  "Be 
unborn.  '         ~~~ 

'  Whitehorne,  for  the  trustees,  referred  to  In  re  Ellis'  Trusts,  Law 
Rep.  17  Eq.  409,  and  Baggett  v.  Aleux,  1  Coll.  138;    1  Ph.  627. 

JessEL,  M.  R.  The  law  upon  the  present  point  appears  to  me  to  be 
in  an  unsatisfactory  state,  and  I  hope  it  may  eventually  come  to  be 
considered  by  the  Court  of  Appeal. 

This  gift  is,  in  efifect,  to  a  person  for  life,  and  then  to  her  chil- 
dren  Jiving  at  her  death ;  daughters  who  are  married  women  to  taRe 
with  a  restraint  on  anticipation.  The  question  is  whether  the  gift  is 
voia,  or  whether  the  restraint  alone  is  void_andthe  gift  is  good. 

Now',  it  is  necessary  to  consider  what  the  meaning  of  a  restraint 
on  anticipation  is,  for  with  the  exception  of  a  single  observation  in  one 
of  the  authorities,  to  which  I  will  refer  presently,  the  point  does  not 
seem  to  have  been  discussed  at  all. 

In  the  first  place,  the  law  of  this  country  says  that  all  property  shall 
be  alienable ;  but  there  has  been  one  exception  to  that  general  law,  for 
restraint  on  anticipation  or  alienation  was  allowed  in  the  case  of  a  mar- 
ried woman.  That  was  purely  an  equity  doctrine,  the  invention  of  the 
Chancellors,  and  is,  as  I  have  said,  an  exception  to  the  general  law 
which  says  that  property  shall  not  be  inalienable.  That  exception  was 
justified  on  the  ground  that  it  was  the  only  way,  or  at  least  the  best 
way,  of  giving  property  to  a  married  woman.  It  was  considered  that 
to  give  it  to  her  without  such  a  restraint  would  be,  practically,  to  give 
it  to  her  husband,  and  therefore,  to  prevent  this,  a  condition  was  al- 
lowed to  be  imposed  restraining  her  from  anticipating  her  income,  and 
thus  fettering  the  free  alienation  of  her  property. 

That  ground  I  must  assume  to  be  correct.    The  result,  therefore,  was 


500  RULE   AGAINST   PERPETUITIES  (Part   4 

that  the  exception  to  the  s^eneral  law  was  in  favor  of  maiTie(l,wnm^n, 
to  enable  them  to  enjoy  their  property- 
Then  there  was  another  rule,  also  invented  by  the  Chancellors,  in 
analogy  to  the  common  law.  That  was  an  invention  of  a  different  kind 
from  the  other,  and  was  this  time  in  fSsyor  of  alienation  and  not  against 
it.  The  law  does  not  recognize  dispositions  which  would  practically 
make  property  inalienable  forever.  Contingent  remainders  were  intro- 
duced, which  had  the  effect  of  rendering  property  inalienable.  The 
doctrine  of  contingent  remainders  was  discussed  by  the  Chancellors, 
who  held  that  a  remainder  depending  upon  what  was  called  a  possibility 
on  a  possibility  was  contrary  to  the  common  law.  That  was  a  whole- 
some rule,  only  it  was  considered  that  it  did  not  go  far  enough.  The 
result  was  that  the  Chancellors  established  this  rule  in  favor  of  aliena- 
tion, that  property^could  not_^etied  up  longer  than  for  a  life  in  be- 
ing and  twenty-one  years  after.  'li}at  is  called  the  rule^againsJ:.  per- 
petuities.  This  rule,  therefore,  was  established  directly  m  favor  of 
alienation :  it  merely  carried  out  the  principle  of  law  that  property  is 
alienable.  Similarly  in  the  case  of  executory  interests,  the  law  put 
a  limit  or  fetter  upon  the  testamentary  power.  The  theory  of  both 
rules  is,  however,  the  same,  namely,  that  property  is  alienable,  though 
it  may  be  made  inalienable  to  a  certain  extent  and  in  a  peculiar  way. 
The  question  is,  whether  the  restraint  on  alienation  should  not  be 
allowed  within  certain  limits  under  the  one  rule  as  well  as  under  the 
other.  The  first  exception  is  a  clear  and  manifest  exception  to  the 
general  law,  which  says  that  property  shall  be  alienable;  the  question 
is,  whether  there  should  not  be  a  similar  exception  to  that  branch  of 
the  general  law  which  says  that  property  shall  not  be  inalienable  be- 
yond a  life  in  being  and  twenty-one  years  after.  But  this  question 
does  not  appear  to  me  to  have  been  well  weighed  or  considered. 

Take  the  case  of  an  ordinary  marriage  settlement,  where  property 
is  settled  for  the  benefit  of  the  husband  and  wife  and  then  on  their 
children  as  they  shall  appoint.  They  have  sons  and  daughters.  If 
the  exception  applies  to  the  rule  against  perpetuities,  they  may  ap- 
point to  such  daughters  with  a  restraint  on  anticipation.  If,  on  the 
other  hand,  the  rule  against  perpetuities  is  to  prevail,  they  cannot  do 
so;  that  is,  they  cannot  appoint  the  property  to  the  daughters  in  such 
a  way  as  to  give  them  the  actual  benefit  of  it,  though  in  the  case  of 
the  sons  they  can  do  so.  This  is  one  instance  of  the  inconvenience 
which  follows  from  holding  that  a  daughter  in  such  a  case  cannot  be 
restrained  from  anticipation  during  coverture. 

Now  it  is  remarkable  that  the  decision  of  Lord  Cottenham  in  Thorn- 
ton  V.  Bright  seems  to  have  been  to  the  other  eft"ect.  The  point,  I 
/'agree,  was  not  argued,  but  we  cannot  imagine  that  the  very  eminent 
counsel  who  argued  the  case,  and  the  very  eminent  judge  who  decid- 
ed it,  overlooked  the  point.  And  in  Fry^y.  Capper,  where  there  was 
an  appointment  under  a  marriage  settlement  to  a  daughter  for  her 
separate  use,  without  power  of  anticipation,  Lord  Hatherley,  when 


Ch.  3)  RESTRAINT   ON    ALIENATION  501 

Vice-Chancellor,  in  referring  to  Thornton  v.  Bright,  said,  "The  ap- 
pointment was  decided  by  Lord  Chancellor  Cottenham  to  be  a  valid 
exercise  of  the  power.  Therefore,  independently  of  principle,  it  would 
be  difficult  for  me,  after  that  decision,  to  hold  this  appointment  to  be 
bad."  Lord  Hatherley  accordingly  held  that  the  appointment  was  not 
void  as  fettering  the  propert)'  beyond  the  legal  limits,  but  that  the  re- 
straint on  anticipation  might  alone  be  rejected.  Since  those  cases  there 
have  been  further  decisions  with  which  I  am  not  satisfied,  but  which, 
nevertheless,  sitting  here  as  a  judge  oFhrst  m stance,  1  am  not  at  lib- 
erty to  disregard.  The  point  came  before  Vice-Chancellor  James  in 
In  re  Teague's  Settlement,  Law  Rep.  10  Eq.  564.  There  a  widow, 
who  had  under  her  marriage  settlement  a  power  of  appointment 
amongst  the  children  of  the  marriage,  executed  the  power  by  giving 
a  share  of  the  settlement  fund  to  a  married  daughter  for  her  separate 
use,  without  power  of  anticipation,  and  the  Vice-Chancellor  held  that 
the  restramt  on  anticipation  only  was  void,  but  that  the  remainder  of 
the  appointment  was  good.  I  must  say  the  Vice-Chancellor's  judgment 
is  very  unsatistactory  to  me,  because  he  gives  no_reasons,  and  he  does 
not  consider  what  the  effect  of  a  restraint  on  anticipation  is. 

It  was  argued  by  Mr.  Hardy  that  the  restraint  on  anticipation  was 
good,  and  he  says,  'Tt  cannot  be  said  that  the  rule  would  have  been 
infringed  if  Mrs.  Teague  had  put  this  restraint  upon  her  daughter  for 
twenty-one  years  and  no  more ;  then  what  reasonable  ground  is  there 
for  not  extending  the  protection  to  the  daughter  throughout  her  mar- 
ried life?"  He  must  have  meant  by  that  what  I  have  already  ex- 
pressed, that  the  object  of  the  restraint  was  to  give  the  daughter  the 
actual  benefit  of  the  appointment.  Then  the  Vice-Chancellor,  after 
referring  to  Fry  v.  Capper  as  a  decision  in  point,  says,  "I  think  it  is 
impossible  to  hold  that  the  rule  against  perpetuities  can  be  abrogated 
in  the  way  which  has  been  suggested.*' 

That  is  practically  the  whole  of  the  Vice-Chancellor's  judgment. 
The  answer  to  that  is.  You  do  not  want  to  abrogate  the  rule ;  the  ques- 
tion is,  whether  the  restraint  on  anticipation  is  not  an  exception,  not 
merely  to  the  particular  rule,  but  an  exception  along  the  whole  line, 
so  to  speak.    The  Vice-Chancellor  really  gave  the  go-by  to  the  point. 

Then  the  point  came  before  Vice-Chancellor  Malins  in  In  re  Cunyng- 
hame's  Settlement, — the  same  point  exactly"  There,  under  a  marriage 
settlement,  the  nus_band  appointed  the  fund  to  the  separate  use  of  a 
married  daughter,  with  a  res_traint  on  anticipation,  and  it  was  held  that 
the  appointnient  to  the  separate  use  was  valid,  but  that  the  restraint 
on  anticipationwas  void  as  being  too  remote.       ~ 

Now  all  the  Vice-Chancellor  says  is  this :  "I  am  of  opinion  that, 
upon  principle,  this  is  an  invalid  exercise  of  the  power  so  far  as  it 
restrains  alienation."  Then,  after  referring  to  the  authorities  I  have 
already  mentioned,  he  says,  "I  should  have  arrived  at  the  same  de- 
cision in  the  absence  of  authority,  but  the  cases  I  have  referred  to 
confirm  me  in  the  opinion  that  the  restraint  on  alienation  is  not  with- 


502  RULE   AGAINST   PERPETUITIES  (Part  4 

in  the  power."  The  whole  argument  of  his  judgment  was,  that  it  was 
a  restraint  which  might  extend  beyond  the  limit,  and  was  therefore 
void,  but  he  did  not  consider  whether,  though  extending  beyond  the 
limit,  it  was  not  an  exception  to  the  general  rule.  Therefore  he  really 
did  not  consider  the  point  at  all. 

Then  the  last  case  is  that  of  In  re  IMichael's  Trusts,  before  Vice- 
Chancellor  Hall,  who  referred  to  a  dictum  of  Lord  Romilly's  in  Armi- 
tage  V.  Coates,  and  his  only  judgment,  as  reported,  was  that  he  thought 
Armitage  v.  Coates  applied  to  the  case  before  him,  and  made  the  order 
as  prayed. 

So  that  nptj^ne-of  the  judges-appganto  m^-toJiave  considered  th^ 
real  point,  namely,  whethera  restriction  on  alienation,  such  as  there 
is  in"tHej3reser<'  ^a^p  is 'vaTid^  I  camiot^  however7~c[o  otherwise  tha^i 
foKow^eir  decisions,  though  but  for  them  my  judgment  would  have 
been  to  the  opposite  effect/but  I  think  thTpoint  iS^opgiTlor  the ^^ourt 
of  AppeaTT""  " 

The  order  will,  therefore,  be  as  prayed.^ 


SLADE  V.  PATTEN. 

(Supreme  Judicial  Court  of  Maine,  1878.    68  Me.  380.) 

ApplI^Ton,  C.  J.  This  is  a  bill  in  equity,  brought  in  pursuance  of 
the  provisions  of  R.  S.,  c  77 ,  §  5,  by  the  complainants  claiming  under 
the  will  of  George  F.  Patten,  to  obtain  the  construction  of  the  same. 
All  having  an  interest  in  the  question  to  be  determined  have  been  made 
parties  to  the  bill,  and  have  entered  an  appearance. 

The  will  is  in  these  words:  "I  give,  devise,  and  bequeath,  all  and 
singular,  my  estate,  real  and  personal,  as  follows;  that  is  to  say,  to 
each  and  all  my  children  an  equal  part  or  proportion  of  all  and  singular 
my  property,  viz. :  To  Catherine  F.  Walker,  Hannah  T.  Slade,  wife  of 
Jarvis  Slade,  James  T.  Patten,  Statira  Elliot,  wife  of  John  Elliot, 
Paulina  Tappan,  wife  of  Winthrop  Tappan,  Augusta  Whittlesey,  wife 
of  Eliphalet  Whittlesey,  and  George  M.  Patten,  one  seventh  part  to 
each  of  them  and  their  heirs,  with  the  proviso,  that  the  parts  and  pro- 
portions heT'eby  devised  and  bequeathed  to  Catherine  F.  Walker,  Statira 
Epiot.  Paulina/Tappan  and  Augusta  Whittlesey  and  their  heirs^  instead 
of  passing  intotheir  hands,  is  to  go  in-o  the  hands  of  James  Slade,  of 
New  York,  and  George  M.  Patten,  of  Bath,  whom  I  hereby  appoint 
tr^LsJte£s,  to  hold,  manage  and  dispose  of  said  parts,  and  the  property 
received  therefor,  for  the  use  and  benefit  of  said  Catherine  F.  Walker, 

1  Observe,  however,  that  if  some  of  the  married  woraenwhose_s^aT2i&. 
estates  are  subject  to  the  restraint  on  r^iieiuilioil  tfl'^  in  oj^lSeTtT^gltestatoPs 

theiFTntercntD.  Herbert  v.^W^b)iter,-JILX:kr--I»r--Gif)  (l-^i-^O) ;  "^tgHre^erneley's 
Trusts;  L.  Kr-tl902]  1  Ch.  54.''.;  In  re  Ganio.  T,.  It.  [1907]  1  Cli.  276.  Com- 
pare with  Wilson  v.  Wilson,  28  L.  J.  Ch.  (N.  S.)  95. 


Ch.  3)  EESTRAINT   ON    ALIENATION  503 

Statira  Elliot,  Paulina  Tappen  and  Augusta  Whittlesey  and  their  heirs, 
according  to  ilii!  disci tLion  of  paid  truotocs.-^ ~ 

it  is  apparent  that  the't^stator  intended  to  treat  all  his  children  with 
perfect  equality,  giving  "to  each  and  all  his  (my)  children  an  equal 
part  and  proportion  of  all  and  singular  his  (my)  property ;"  and,  while 
he  placed  "the  parts  and  proportions"  of  four  of  his  daughters  in  the 
hands  of  trustees,  the  trustees  were  "to  hold,  manage  and  dispose  of 
said  parts,  and  the  property  received  therefor,  for  the  use  and  benefit" 
of  his  said  daughters  and  their  heirs.  True,  it  was  to  be  according  to 
the  discretion  of  the  trustees,  but  that  discretion  related  solely  to  the 
holding,  managing  and  disposing  of  these  parts.  There  is  no  provision 
for  the  termination  of  the  trust  estate.  It  continues  for  the  heirs  of 
thp  dnmrlitfft^  nrnripd.  equally  as  for  the  daughters.  '  ~~- 

irThe  trustees  are  tohold  the  estate  for  the  Tbur  daughters  and  the 
heirs  of  the  daughters,  fhen_thejrust  is  void_as_creating  a  perpetuity! 

But  it  has  been  argued  that  the  intention  of  the  testator  was  that  the" 
trust,  as  to  each  of  his  daughters,  should  cease  as  to  such  daughter 
and  vest  in  the  children  of  such  daughter.  But  this  is  against  the 
express  terms  of  the  will,  by  which  the  trustees  are  to  hold  the  estate 
"for  the  use  and  benefit"  of  the  four  daughters  named  "and  their 
heirs."  The  trust  is  as  much  for  the  heirs  of  the  daughters  as  for  the 
daughters.  The  will  makes  no  provision  for  the  termination  of  the 
trust  at  the  death  of  the  daughters  or  their  heirs.  It  continues  as 
much  for  the  latter  as  for  the  former.  The  devise  is  one^and- indivisi- 
ble to  the  trustees  to  hold,  jmanage  and  dispose  of,  forJJifLjJse  and 
benefit  ot  the  daiigHersandtheiFTieirs.  In  no  legal  sense  can  the" 
daughters  be^d^med^TheTirsttakers,  and  the  trust  valid  as  to  them 
and  not  as  to  their  heirs. 

But  assuming  it  to  have  been  the  testator's  intention  that  on  the 
decease  of  his  daughters  their  respective  shares  should  go  to  the  heirs 
of  such  daughters  in  fee  simple,  still,  this  would  create  a  perpetuity, 
because  it  was  possible,  that  they  might  have  heirs  unborn  at  the  testa- 
tor's death  and  in  whom  the  estate  would  not  vest  within  lives  in  being 
and  twenty-one  years  and  a  fraction  afterwards. 

"This  rule  is  imperative  and  perfectly  well  established.  An  execu- 
tory devise,  either  of  real  or  personal  estate,  is  good,"  observes  Mer- 
rick, J.,  in  Fosdick  v.  Fosdick,  6  Allen  (Mass.)  41,  "if  limited  to  vest 
within  the  compass  of  a  life  or  lives  in  being,  and  twenty-one  years 
afterwards ;  adding  thereto,  however,  in  case  of  an  infant  en  ventre 
sa  mere,  sufifiicient  to  cover  the  ordinary  time  of  gestation  of  such  child. 
But  the  limitation,  in  order  to  b^  valiclj  must  be  so  made  that  the  p?^-^ 
tate,  or  whatever  Is  devised~or  bequeathed,  not  only  may,  but  must 
necessarily,  vest  within  the  prescribed  period.  If  by  any  possibility 
the  vesting- may  be  postponed  beyond  this  period,  the  limitation  over 
will  be  void."  In  any  view  of  the  trust,  therefore,  it  must  be  deem- 
ed void,  as~creating  a  perpetuity.    1  Perry  on  Trusts,  §§  381,  382,  383. 

Here,  in  the  first  instance,  there  was  an  absolute  gift  to  the  daugh- 


504  RULE   AGAINST   PERPETUITIES  (Part  4 

ters  and  their  heirs.  Upon  this  gift  a  limiting  or  restrictive  clause  was 
attempted  to  be  grafted,  which,  it  has  been  seen,  was  void.  The  first 
gift  remains  in  full  force,  if  the  attempted  qualification  becomes  in- 
effectual.  The  presumption  is  that  "the  testator  intends  the  prior  ab- 
solute gift  to  prevail,  except  so  far  only  as  it  is  efifectually  superseded 
by  the  subsequent  qualified  one."  1  Jarman  on  Wills,  §  257.  "When- 
ever there  is  a  limitation  over,"  remarks  Alerrick,  J.,  in  Fosdick  v. 
Fosdick,  6  Allen  (Mass.)  41,  43,  "which  cannot  take  efifect  by  reason 
of  its  being  too  remote,  the  will  is  to  be  construed  as  if  no  such  pro- 
vision or  clause  were  contained  in  it ;  and  the  person  or  persons  other- 
wise entitled  to  the  estate  or  property  will  take  it  wholly  discharged 
of  the  devise,  bequest  and  limitation  over.  Sears  v.  Russell,  8  Gray 
[Mass.]  86,  97;  Brattle  Square  Church  v.  Grant,  3  Gray  [Mass.] 
142  [63  Am.  Dec.  725]." 

The  conclusion  is  that  the  trust  for  the  daiiglit^rs  is  void_as  creating^ 
a  perpetuity,  and  the  absolute  gift  remains. 

It  is  obvious  that  there~are  no  words  ojjnheritance  jn  thetrustees. 
But  that  cannot  be  deemed  material.  Courts  of  equity  do  not  permit" 
a  trusTtoTall  for  want  of  trustees'.""  Their  tenure  is  to  be  determined 
by  their  powers  and  duties.  "The  intent  of  the  parties  is  determined 
by  the  scope  and  extent  of  the  trust.  Therefore  the  extent  of  the 
legal  interest  of  a  trustee  in  an  estate  given  to  him  in  trust  is  measured, 
not  by  words  of  inheritance  or  otherwise,  but  by  the  object  and  ex- 
tent of  the  trust  upon  wdiich  the  estate  is  given.  On  this  principle 
two  rules  of  construction  have  been  adopted  by  courts ;  first,  when 
a  trust  is  created,  a  legal  estate  sufficient  for  the  purposes  of  the  trust 
shall,  if  possible,  be  implied  in  the  trustee,  whatever  may  be  the  limi- 
tation in  the  instrument,  whether  to  him  or  his  heirs  or  not;  and, 
second,  although  a  legal  estate  may  be  limited  to  a  trustee  to  the 
fullest  extent,  as  to  him  and  his  heirs,  yet  it  shall  not  be  carried 
further  than  the  complete  execution  of  the  trust  requires."  1  Perry  on 
Trusts,  §  312.  Courts  will  imply  an  estate  in  the  trustees,  though  no 
estateis_  given  them  in  words,  to  carry  into  effect  the  intention  ot  the 
paftiesTThe  absence  of  words  of  inheritance  in  the  trustees  would 
not  be  held  to  limit  the  duration  of  the  trust  to  their  lives,  if  the  trust 
were  a  valid  one.  But  the  trust  being  void,  for  the  reasons  already 
given,  the  estate  of  the  trustees  must  cease ;  as  no  provision  has  been 
made  for  a  trust  which  could  be  carried  legally  out. 

The  devise  to  Mrs.  Elliot  differs  from  that  to  the  other  daughters. 
The  provisions  of  the  will  as  to  her  stand  thus:  First,  there  is  a 
devise  to  her  and  her  heirs.  Then  a  trust  is  interposed,  which  wc  have 
sec"n  is  void,  followed  by  the  f ollowlng^lause :  "In  case  that  Statira 
Elliot  should  die  before  her  husband  aiijl  leave  "no  children.  1  will 
that  her  part,  after  the  expiration  of  six  years,  be  transferred  by  the 
trustees  over  to  the~l?5rties  of  the  other  "siSTlieirs,  and  to  be  equally 
divided  between  thenTl"  " 


Ch.  3)  RESTRAINT   ON    ALIENATION  505 

Leaving  out  of  consideration  the  trust  as  void,  there  is  first  a  gift 
to  her  and  her  heirs,  but  in  case  she  dies  before  her  husband  leaving 
no  children,  then  over.  This  is  as  if  he  had  said  to  Statira  Elliot  and 
her  children,  but  in  case  she  dies  leaving  no  children,  then  over.  The 
doctrine  is  thus  stated :  "When  a  testator  in  the  first  instance  de- 
vises land  to  a  person  and  his  heirs,  and  then  proceeds  to  devise  over 
the  property  in  terms  which  show  that  he  used  the  word  heirs  in  the 
prior  devise  in  the  restricted  sense  of  heirs  to  the  body;  such  devise 
confers  only  an  estate  tail,  the  effect  being  the  same  as  if  the  lat- 
ter expression  had  been  originally  employed."  2  Jarman,  238.  "If, 
therefore,"  remarks  Shaw,  C.  J.,  in  Nightingale  v.  Burrell,  15  Pick. 
(ISIass.)  104,  "an  estate  is  devised  to  A.  and  his  heirs,  which  is  a  fee : 
andit^^is  afterwards  provided  that  it  A.  die  without  issue,  then  over, 
this  reduces  it  to  an  estate  tail  by  implication.  The  law  implies  that 
by  'heirs'  in  the  first  devise,  was  intended  heirs  of  the  body,  and  it 
also  implies  from  the  proviso,  that  it  was  not  the  intent  of  the  testator 
to  give  the  estate  over  and  away  from  the  issue  of  the  first  devisee, 
but,  on  the  contrary,  that  such  issue  should  take  after  the  first  devisee." 
Parkman  v.  Bowdoin,  1  Sumn.  367,  Fed.  Cas.  No.  10,763.  The  cases 
cited  by  the  counsel  for  ]\Irs.  Elliot  lead  to  the  conclusion  that  she 
would  be  entitled  to  an  estate  tail  in  the  real  estate. 

But  the  words  which  will  create  an  estate  tail  when  applied  to  real 
estate,  will  give  an  absolute  interest  when  applied  to  oersonaltY-  "The 
same  limitation  under  the  English  law,  which  would  create  an  estate 
tail  if  applied  to  real  estate,  would  vest  the  whole  interest  absolutely 
in  the  first  taker  if  applied  to  chattels."  4  Kent  Com.  283.  Hall  v. 
Priest,  6  Gray   (:^Iass.)  18,  22. 

Such  might  have  been  the  legal  rights  of  Mrs.  Elliot  had  there  been 
no  attempt  at  creating  a  trust  estate,  but  this  provision  cannot  be 
eliminated  from  the  will.  It  is  there.  If  the  trust  is  void  as  to  one 
daughter,  it  is  void  as  to  all.  Equality  among  the  children  is  the  rule. 
It  \vas  not  the  intent  that  three  daughters  should_have  an  absolute 

estate  in  their  sliares  and  the  tourth_  to  have  an  interest  only  for  life_; 

Now  to  set  aside  the  trust  as  to  three  of  the  daughters  and  giving  such 
a  construction  to  the  will  as  would  give  Mrs.  Elliot  a  life  estate  only 
in  case  she  survived  her  husband,  thus  limiting  her  only  to  her  in- 
come, so  that  the  estate  may  be  kept  intact  to  meet  the  contingency 
of  her  dying  and  leaving  no  children,  would  be  the  making  a  will  the 
testator  never  made  and  defeating  his  manifest  intent  of  giving  "to 
each  and  all  his  (my)  children  an  equal  part  and  proportion  of  his 
property."  - 

If  the  trust  was  void  from  the  beginning,  then  those  named  as  trus- 
tees never  held  any  of  her  property  as  trustees  to  be  transferred  to 
the  heirs. 

2  See  Bigelow  v.  Cady,  171  111.  229.  48  N.  E.  974,  GP,  Am.  St.  Rep.  230. 


506  RULE  AGAINST  PERrETUiTiES  (Part  4 

The  result  is  that  the  trust  as  to  the  daughters  is  void  ascreatinoL 


a  perpetuity;  and,  as  it  is  the  manifest  intention  bt  the  testator  to  di- 
videhis  pstnte  eqn ally  among;-  his  children,  the' 515ecial  clause  as  to  Mrs. 
Efliot  is  so  connected  with  and  dependent  upon  the  trust  clause,  that 
if  that  fails  this  fails  with  it,  and,  as  they  liola  tne  estate  de\ased  'as 

an--^l2g7Ti1irt^o-;f|-,  gn  f-gually  dnpg  ^lip. 

'According  to  the  true  construction  of  the  will  of  George  F.  Patten, 
it  is  declared : 

I.  That  the  trust  attempted  by  said  will  to  be  vested  in  the  com- 
plainants is  wholly  void. 

II.  That  the  children  of  Catherine  F.  Walker,  deceased,  are  entitled 
to  receive  payment,  delivery  and  conveyance  of  a  share,  to  wit :  one 
fourth  of  the  principal  and  body  of  the  estate  in  the  hands  of  the 
complainants,  to  the  use  of  themselves,  their  heirs  and  assigns  for- 
ever, absolutely  and  free  of  all  control  from  the  complainants. 

III.  That  said  Statira,  Paulina  and  Augusta  are  each  entitled  to  re- 
ceive payment,  delivery  and  assignment  of  a  share,  to  wit:  of  one 
fourth  of  the  principal  and  body  of  the  said  estate  in  the  hands  of 
the  complainants,  each  to  the  use  and  behoof  of  herself,  her  heirs 
and  assigns  forever,  free  from  the  control  of  these  complainants. 

IV.  That  these  complainants  may  and  shall  pay,  deliver  and  assign 
to  said  Statira,  Paulina  and  Augusta,  and  to  the  children  of  said 
deceased  Catherine,  any  and  all  of  the  principal  and  body  of  the  es- 
tate in  their  hands  to  the  use  of  said  Statira,  Paulina,  Augusta,  and 
to  the  heirs  and  assigns  of  each  forever,  and  to  the  use  of  the  heirs 
of  said  Catherine,  their  heirs  and  assigns,  their  respective  and  several 
shares,  free  from  the  control  of  the  complainants. 

And  it  is  ordered  and  decreed  that  the  costs  of  the  proceeding  be 
charged  upon  the  estate  of  Statira,  Paulina,  Augusta  and  the  heirs  of 
Catherine. 

Walton,  Barrows,  Danforth,  Virgin  and  Libbey,  JJ.,  con- 
curred.^ 

3  Compare  Pennsylvania  Co.  v.  Price,  7  Phila.  (Pa.)  4.65  (1870) ;  Winsor  v. 
Mills,  1.57  Mass.  362.  32  N.  E.  3-52  (1892) ;  Lawrence  v.  Lawrence,  4  W.  Austra. 
L.  R.  27  (1901) ;  Williams  v.  Herrick,  19  R.  I.  197,  32  Atl.  913  (1895) ;  Howe 
V.  Morse,  174  Mass.  491,  55  N.  B.  213  (1899). 

Tn  the  absence  of  a^  statute  expressly  permitting  It,  a  triist  for  the  per- 
petual  care  of  the  testator's  cemetery  lot  has  been  held  "v^&itT:  MasoiT^. 
Bloomington  Library  Ai?5'n7  237  111.  442,  8«J  M.  ET  l(>44rT^~tS:nn.  Cas.  603. 
See,  also,  cases  cited  in  Ames'  Cases  on  Trusts  (2d  Ed.)  p.  201,  note  1.  On 
the  other  hand,  where  the  trust  is  for  the  care  of  a  cemetery  lot  or  other 
object  and  where  there  is  no  cestui  que  trust,  and  the  trust  is  limited  to  con- 
tinue/or  not  to  exist**5Ives  in  bein^'  in  21  years  from  the  creation  of  the  in- 
terest, the  trust  is  valid  and  may  be  carried  out  by  the  trustees.  Mussett  v. 
Bingle,  W.  N.  (1896),  p.  170;  Angus  v.  Noble,  73  Conn.  56,  46  Atl.  278; 
Leonard  v.  Haworth,  171  Mass.  496,  51  N.  E.  7 ;  Pirbright  v.  Salwey,  W.  N. 
(1896)  p.  86.  See,  also,  cases  cited  in  Ames  cases  on  Trusts  (2d  Ed.)  p.  201, 
note  2,  and  "The  Failure  of  the  'Tildcn  Trust,' "  by  J.  B.  Ames,  5  Harv.  Law 
Rev.  389,  397,  et  seq. 


Ch.  3)  RESTKAINT   ON    ALIENATION  507 

PULITZER  V.  LIVINGSTON. 

(Supreme  Judicial  Court  of  Maine,  1896.    89  Me.  359,  36  Atl.  635.) 

Agreed  statement.  This  was  an  action  of  covenant  broken,  submit- 
ted to  the  law  court  on  an  agreed  statement  of  facts  which  are  found 
in  the  opinion. 

FosTr.R,  J.  More  than  forty  years  ago  certain  persons  residing  in 
England  and  France  were  the  owners  in  fee  of  large  tracts  of  real  es- 
tate in  America,  particularly  in  the  States  of  Maine,  New  York,  Penn- 
sylvania, and  the  District  of  Columbia.  These  estates  had  formerly 
been  the  property  of  their  ancestor,  William  Bingham,  of  Philadelphia, 
and  from  whom  the  title  descended,  the  "Bingham  Estate,"  so-called, 
embracing  two  million  two  hundred  thousand  acres  in  the  State  of 
Maine  alone.  TEes^  large  landed  estates  were  principally  wild  and  un- 
inipfovecCand  required  the  management  in  this  country  of  representa- 
tives of  the  owners. 

Considering  the  large  and  increasing  number  of  persons  who  jointly 
owned  these  estates  and  the  distance  of  their  residence  from  the 
same,  provisions  for  the  sales  and  conveyances  by  letter  of  attorney 
were  inadequate,  because  of  deaths  frequently  occurring  among  those 
who  were  the  owners,  and  of  the  necessity  of  purchasers  inquiring 
and  taking  the  risk  of  the  correctness  of  the  information  as  to  the 
continuance  of  the  lives  of  the  parties  executing  a  letter  of  attor- 
ney. 

On  July  18,  1853,  three-fifths  undivided  of  this  property  were  vested 
in  the  following  named  persons :  William  Bingham  Baring  (Lord  Ash- 
burton),  Henry  Bingham  Baring,  Frances  Emily  (Baring)  Simpson, 
William  Frederick  Baring,  and  Anna  Maria  Helena  (Countess  de 
Noailles),  and  on  that  day  these  persons  executed  a  deed  of  trust  of 
their  undivided  three-fifths  of  the  property  to  Joseph '  Reed  Inge'rsoU 
and  John  Craig  Miller,  as  trustees. 

The  other  two-fifths  of  the  property  were  vested  in  William  Baring 
de  Lotbiniere  Bingham,  who  on  the  12th  day  of  August,  1862,  exe- 
cuted a  like  deed  of  trust  of  his  undivided  two-fifths  of  the  property 
to  the  same  persons,  as  trustees. 

These  owners,  for  the  more  convenient  management  of  their  prop- 
erty in  this  country,  conveyed  it  to  these  trustees  by  the  foregoing 
deeds,  and  upon  substantially  the  following  trusts,  as  therein  ex- 
pressed : 

(1)  To  let  and  demise  the  real  estate;  (2)  to  invest  and  keep  in- 
vested the  moneys  and  personal  estate,  with  power  of  sale  and  rein- 
vestment; (3)  to  collect  and  receive  the  rents  and  income  of  the  real 
estate,  and  the  interest  and  income  of  the  personal  estate ;  (4)  to  remit 
the  net  income  to  the  parties  or  their  legal  representatives,  according 


508  RULE   AGAINST  PERPETUITIES  (Part  4 

to  their  respective  rights  and  interests  therein,  or  otherwise  to  apply  and 
dispose  of  the  same  as  the  parties  or  their  legal  representatives  should 
from  time  to  time  direct. 

The  following  powers  were  therein  expressly  conferred  upon  the 
trustees,  viz. :  To  grant,  bargain,  sell,  exchange,  and  absolutely  dispose 
of  in  fee  simple,  or  for  life,  or  lives,  or  for  years,  or  for  any  other  es- 
tate, all  or  any  part  of  the  real  estate,  and  to  make  in  due  form  of  law 
all  such  deeds  and  conveyances  as  might  be  necessary  to  carry  the  sale 
into  effect;  to  remit  the  proceeds  of  such  sales  after  deducting  ex- 
penses, to  the  parties  or  their  legal  representatives,  according  to  their 
respective  interests  therein,  or  to  otherwise  apply  and  dispose  of  the 
same  as  the  parties  or  their  legal  representatives  should  from  time  to 
time  direct ;  to  raise  by  mortgage  of  the  premises  or  any  part  thereof, 
such  sum  or  sums  of  money  as  should  be  requested  by  the  parties,  or 
such  of  them  as  might  be  entitled  to  any  beneficial  interest  in  the  prem- 
ises; to  appoint  by  deed  successors  with  all  the  powers  of  the  trus- 
tees originally  named;  and  finally  it  was  expressly  provided  that  it 
should  be  lawful  for  the  parties  resj^ectively,  "and  thejj: -rp.si:)ective  ^- 
gal  representatives,  at  any  time  or  timesnereauer.  by  any  writing  or 
writings  uncIerTheir  respective  hands  and  seals,  and  attested  by  two  or 
more  credible  witnesses,  to  alter,  change,  rf^^rnl-p.^  annn],  gpd  destroy 
all  and  every  the  trusts  hereby  created  as  respects  their  respective  shares 
and  interests  in  the  premises,  and  to  declare,  direct,  and  appoint  such 
other  uses  and  trusts,  if  any,  concerning  their  respecti\'e  shares  and  in- 
terests in  the  said  trust  estate,  or  any  part  thereof,  as  they  shall  re- 
spectively choose  or  think  proper,  anything  herein  contained  to  the  con- 
trary notwithstanding." 

New  trustees  were  from  time  to  time  nominated  in  accordance  with 
the  provisions  of  the  deeds  in  relation  to  successors  to  the  original 
trustees,  and  on  September  14,  1882,  the  then  trustees,  Charles  Willing 
and  Phineas  Pemberton  Morris,  conveyed  the  particular  property  in- 
volved in  this  action  to  ]\Iay  W.  Bowler,  of  Cincinnati,  Ohio.  On 
October  4.  1886,  May  W.  Bowler  conveyed  the  same  to  the  defendant, 
and  on  May  30,  1894,  the  defendant  conveyed  the  same  by  warranty 
deed,  with  full  covenants,  to  the  plaintiff. 

The  plaintiff  has  brought  this  action  for  a  breach  of  the  defendant's 
covenant  contained  in  her  deed  to  him  that  the  property  is  "free  of  all 
incumbrances,"  alleging  an  outstanding  title  in  fee  in  those  persons  who 
executed  the  trust  deeds,  or  their  heirs  or  assigns,  as  a  breach  of  that 
covenant.  And  as  a  part  of  the  same  transaction  with  the  deed  from 
defendant  to  the  plaintiff,  the  defendant  executed  and  delivered  to 
the  plaintiff'  a  special  covenant  that  those  grantors  in  the  trust  deeds 
had  no  right,  title  or  interest  in  the  property  that  could  be  maintained 
in  any  proceeding  in  the  courts  of  this  State  as  against  the  title  con- 
veyed by  her  to  the  plaintiff,  and  a  breach  of  this  special  covenant  is 
also  alleged  in  this  action. 


Ch.  ?,)  RESTRAINT    ON    ALIENATION  509 

The  land  involved  in  this  action  is  situated  at  Bar  Harbor,  and  com- 
prises about  fifteen  acres  with  the  buildings  thereon.  The  purchase 
price  between  the  plaintiff  and  the  defendant  was  $90,000,  and  since 
the  conveyance  over  $100,000  more  have  been  expended  in  improve- 
ments. 

The  rights  of  the  parties  depend  upon  the  legal  effect  to  be  given  to 
the  trust  deeds  of  July  18,  1853,  and  August  12,  1862,  the  plaintiff 
claiming  that  these  deeds  are  not  legally  sufficient  to  divest  the  grantors 
of  their  title  m  tlie  property;  that  there  were  futvtre  estates^and Jnter^ 
ests~so  hmited  therein  that  they  offend  against  those  rules  of  law  which 
prescnbejind  limitjthe_period  within  which  future  estates  and^mteresfs 
mu st  Hecessarily  vest;  anH  thatTliese  deeds  beiiig~\''oid  no  title  ever 
passccTto  the  trustees  but  still  remains  in  the  grantors,  or  their  heirs  or 
assigns. 

The  ground  upon  which  the  trust  is  attacked,  and  the  court  asked  to 
declare  it  void,  is  that  the  terms  of  the  trust  violate  that  rule  of  law 
known  as  the  Rule  against  Perpelullics. 

It  is  necessary  in  order  to  determine  whether  the  trust  is  objection- 
able, to  consider  just  what  the  rule  is,  and  what  is  its  object  and  pur- 
pose. 

The  rule  against  perpetuities  was.estaJblislied  to  preve^nt  pos^jiiortem 
control  of  property.  TfTorbids  the  creation  of  estates  which  are  to  vest, 
orTome  into  being'  upon  a  remote^^ntingencyT^d  where^  the  vesting 
of  an  estate  or  interest  is  thereby  unlawfully  postponed. 

It  i^  cuiiLiaiy  Lu^tlie'poIicY  ot  thjJla:w-lliat"tHerFsIioilJd  be  any  out- 
standing titles,  estates,  or  powers  by  the  existeiice,  operationror  exer- 
cise ot  w^hich  at  a  period  of  time  be3^ond  iTves  in  being,  an aT\r e ii ly ^obc 
years~and  a  fraction  thereafter,  the  complete  and  unfettered  enjoyment 
of  an  estate  M-itli  all  tEeTights,~pnvileges.  and  powers  incident  to  own- 
ersliip_should  be  qualified  or  impedejj.  When  this  is  the  case,  as  the 
court  say  in  Philadelphia  v.  Girard's  Heirs,  45  Pa.  26,  84  Am.  Dec.  470, 
they  are  called  perpetuities,  not  because  the  grant  or  devise  as  written 
would  actually  make  them  perpetual,  but  because  thev  transgress  the 
limits  which  the  law  has  set  m  restraint  of  .grants  or  devises  that  tend 
to  a  per])etual  suspension  of  the  title  or  of  its  vesting  or,  as  is  some- 
times with  less  accuracv  expressed,  to  a  perpetual  prevention  or  re- 
straint upon  alienation. 

Tills  rule  of  restraint  upon  alienation  has  frequently  been  confound- 
ed with  the  rule  against  perpetuities.  They  are,  however,  separate  and 
distinct  rules,  although  their  object  is  one  and  fbe  satpe, — the  preven- 
tion of  property  being  taken  out  of  commerce,  locked  up,  or  so  held 
that  it  cannot  be  conveyed.  It  is  important  therefore  in  the  consid- 
eration of  cases  to  bear  in  mind  that  the  two  rules  are  independent  and 
distinct.  Gray  on  Perpetuities,  §  236,  thus  speaks  of  the  two  rules: 
"There  are  two  distinct  rules  of  law  by  the  joint  action  of  which  the 
t>'ing  up  of  estates  is  prevented :  (1)  Estates  cannot  be  made  inalienable. 


510 


RULE   AGAINST  PERPETUITIES 


(Part  4 


(2)  Future  estates  cannot  be  created  beyond  the  limits  fixed  by  the  rule 
against  perpetuities." 

The  rule  against  perpetuities  concerns  only  remote  future  and  con- 
tingeliFFStates  and  interestsr  It  appliesJe^uall3rt(rTegal"^hd  equitable 
estates,  to  jnstruments'  executmg  powers,  as  well  as  to  other  instru- 
ments! Duice  of  iNortolks  Uase,  i  VernT  164  (3^hrCasT48)T^  Gray 
oiTRule  against  Perpetuities,  §  411.  A  limitation  that  is  valid  in  the 
case  of  a  legal  estate  is  valid  in  the  case  of  an  equitable  estate.  If  an 
equitable  estate,  as  for  instance  a  trust,  is  so  limited  that  it  creates  a 
perpetuity,  a  similar  limitation  of  a  legal  estate  equally  creates  a  per- 
petuity. Goddard  v.  Whitney,  140  Mass.  100,  3  N.  E.  30;  Kimball  v. 
Crocker,  53  Me.  266;  Ould  v.  Wash.  Hosp.,  95  U.  S.  303,  312,  24  L. 
Ed.  450. 

Whatthen  is  a  perpetuity  ? 

It  is  a  grant  of  property  wherein  the  vesting  of  an  estate  or  interest 
is  unlawfully  postponed.     The  law  allows_thevestingof  an  estate  or 
int^rest^_^J3£Lalso  the^power  of  alienation,  to  be  postponec 
period  of  a  life  or  lives  in  being~aiT^jb\\^enty^-oneyeaFs_arK 
thereafter;    anH  aH  restraints  Jipon^jheyesti^^  that  may  suspend  it 


beyond  thaJtjjeriod  axF'treateda  perpetual  restraints  and^  void, 
estates' orjnterests  which  a^edependent^onjthem  are  void.  "Nothmg 
is  denounced  as  a  perpetuity  thaT^does  nottransgres'sThis  rule,  and 
equity  lollows  tHTs  ruleby'way'of  analogy  in  dealing  with  executory 
trusts 


analHose  trilsTs  which  transgress  the  rule^re'called^rans'gres- 
siv£_trusts, '  being  in  equity  the  substantial  equivalent  of  what  in  law 
are  called  perpetuities.  Feame  on  Rem.  538  n.  "But  the  limitation, 
in  order  to  be  valid,  must  be  so  made  that  the  estate  or  whatever  is 
devised  or  bequeathed,  not  only  may,  but  must  necessarily,  vest  within 
the  prescribed  period.     IfJiy_any_possibility__Uie  v^^^  be  post- 

poned^beyond  this  period,  the  limitation  oyer  will  be  void?'  Fosdick 
V.  Fosdick,  6  Allen  (Mass.)  41 ;  Brattle  Square~T!HurcB~V.  Grant,  3 
Gray,  142,  63  Am.  Dec.  725.  Lewis  in  his  work  on  Perpetuities  gives 
the  following  as  an  accurate  definition^of__aperpetuity :  "A  perpetuity 
is  a  f^iture  limitation,  ju^hether  executor}^  or  by_way  of  remaihderT^d 
of  either  real  or  personal  property,  'wliich  is  not  to  vest  until  after 
the_ex£iratTorrTjf7'or wilTnot  necessarily  vest  within,  the  period  fixed 
and  pjescribed/bv  law~For  the~creatiQn  of  future~esFates_and^interests, 
andwhich  is  not  destructible  by  the^ersons  for  the^time  being  entitled 
to  the  propertysubject  to  the  futureTJinjtation,  except  witfi^he  coricnr- 
ren(^e  oFthe^lndrvidual  interested  under  that  limitati^m." 

The  rj.ile  against  perpetuities  has  no  applicati'^ri  tr>  y^^stfrl  C^j^^^^^^^'^'' 
interests. "  Gray  on  Perpetuities,  §  205.     It  concerns  itself  only  witR~ 
the  vesting,  the  commenritip-  of  estntes,  and  not  at  all  with  their  termi- 
nation!    It  niakes  no  difference  when  such  a  vested  estate  or  interest 
Hmited  terminates.     Routledge  v.  DorrTl72  Ves.   jr.~3^6l    Evans  v. 


WaTIcefr3XhV  Div.  211;  Hampton  v.  Holman,  5  Ch.  Div.  183;   see  14 


Ch.  3)  RESTRAINT   OX    ALIENATION  511 

Am.  Law  Review,  237.  When  an  estate  or  interest  vests  in  a  per- 
son he  is  the  owner  and  can  ahenate  it.  Fosdick  v.  Fosdick,  6  Allen 
(Mass.)  41 ;  Kimball  v.  Crocker,  53  Me.  266 ;  Merritt  v.  Bucknam,  77 
Me.  258;  Seaver  v.  Fitzgerald,  141  Mass.  401,  6  N.  E.  73. 

Examined  in  the  light  of  the  foregoing  rules  and  principles,  we  are  ^-^ 
unable  to  discover  wherein  the  deeds  in  question  offend  the  rule  against  L_^ 
perpetuities.  Ihe  trustees  took  the  legal  estate.  The  beneficial  or 
equitable  estate  was  reserved  to  the  grantors  and  their  representatives. 
All  interestsjegal  and  equitable~vv^^re_vested.  "^^otTTing  was  p'osTponed. 
The~"Beneficial  enjoyment  of  the  estate  absolutely  and  unqualifiedly 
vested  in  tlie  persons  who,  prior  to  the  delivery  of  the  deeds,  held  the 
legal  title.  Each  of  these  persons  as  the  owners  of  the  equitable  es- 
tate, after  the  deeds  were  delivered,  possessed  over  his  own  equitable 
interest  the  same  power  of  sale,  conveyance,  devise,  and  disposition, 
as  prior  to  the  deeds  he  had  over  his  undivided  interest  in  tlre-iegal 
estate?  Upon  the  exercise  ot~3JTy' oi  these  powers.  The  person~in 
whose  favor  it  might  be  exercised  would  become  fully  possessed  of 
such  equitable  and  beneficial  interest.  The  trustees  as  the  holders  of 
the  legal  title,  during  the  continuance  of  the  trust,  have  the  fullest  pow- 
ers of  sale  and  conveyance,  so  that  the  alienation  of  the  property  is 
absolutely  unfettered.  The  owners  of  an  equitable  estate,  Hke  the 
owners  of  a  legal  estate,  can  alienate  or  assign  their  interest.  There 
is  nothing  in  these  deeds  that  prohibits  this.  By  an  examination  of 
the  deeds  of  trust  it  will  be  perceived  that  neither  the  rules,  nor  the 
reason  of  the  rules,  have  been  transgressed.  The  land  is  as  alienable,  in 
legal  contemplation,  as  if  the  deeds  had  never  been  executed.  No  pro- 
vision is  disclosed  looking  to  any  future,  contingent  or  remote  estate, 
which,  springing  into  being  in  future  would  hinder  free  alienation  by 
imposing  a  clog  on  the  title  which  those  now  vested  with  the  present 
title  and  possession  could  not  remove. 

But  there  is  another  point  which  is  fatal  to  the  plaintiff's  contention 
that  these  trust  deeds  are  obnoxious  to  the  rule  against  perpetuities.  (^^ 
This  rule  does  not  apply  to  interests  which  though  future  are  destruc- 
tible at  the  mere  will  and  pleasure  of  the  present  owner  of  the  property. 
"A  future  estate  which  at  all  times  until  it  vests  is  in  the  control  of  the 
owner  of  the  preceding  estate,  is,  for  every  purpose  of  conveyancing,  a 
present  estate,  and  is  therefore  not  obnoxious  to  the  rule  against  per- 
petuities." Gray  on  Perpetuities,  §  443.  The  author  clearly  points 
out  in  sections  140  and  those  that  follow,  that  a  perpetuity  is  an  in- 
destructible interest,  and  while  he  shows  that  it  has  another  artificial 
meaning,  or  "an  interest  which  will  not  vest  till  a  remote  period,"  yet 
in  all  his  illustrations  he  shows  clearly  that  interests  which  are  destruc- 
tible are  not  perpetuities.  This  doctrine  is  laid  down  by  Chief  Justice 
Gibson  in  Hillyard  v.  ]\Iiller,  10  Pa.  334,  wherein  he  cites  with  approval 
the  definition  of  a  perpetuity  as  given  by  Lewis,  and  also  in  Mifilin  v. 
Mifflin,  121  Pa.  205,  15  Atl.  525.     In  the  latter  case,  the  court,  in 


512 


RI'LE   AGAINST   PERPETUITIES 


(Part  4 


considering  the  provisions  of  certain  deeds  which  were  claimed  to  be 
inoperative  because  of  the  rule  against  perpetuities,  uses  this  language : 
"Put  the  estate  of  Mrs.  Mifflin  was  neither  inalienable  nor  indestructi- 
ble. It  was  entirely  withiiTher  poweFtonjecome  the  owner  in  fee  of  the 
estates  granted  and  to  totair>^ctefearany_ulterior  limitations.  It  pfoW^d 
notrrTng^to  say  she  did  not  exercise  her  power  and  that  therefore  the 
situation  is  the  same  as  though  she  never  had  the  power.  For  certain 
purposes  and  in  certain  cases  that,  of  course,  is  true.  But  in  consider- 
ing merely  the  application  of  the  rule  against  perpetuities,  it  is  not  true, 
because  that  rule  requires  that  the  estates  in  question  should  be  inde- 
structible,  and  an  estate  which  can  be  destroved  by  the  persorTl^lTO" 
holHs  it  for  the  time  beings  is  not  indestructible." 

"So  in  another  recent  case  in  Pennsylvania  the  court  say:  "Aside 
from  this  it  was  competent  for  all  the  parties  in  interest  at  any  time  to 
defeat  the  power  and  to  take  the  property  discharged  thereof ;  under 
these  circumstances,  we  cannot  say  that  the  trust  created  a  perpetuity." 
Cooper's  Estate,  150  Pa.  576,  24  Atl.  1057,  30  Am.  St.  Rep.  829;  Lov- 
ering  v.  Worthington,  106  Mass.  86,  88 ;  Bowditch  v.  Andrew,  8  Al- 
len (:\Iass.)  339;   Goesele  v.  Bimeler,  14  How.  589,  14  L.  Ed.  554. 

The  very  definition  of  a  perpetuity  as  given  by  Lewis  has  its  appli- 
cation to  a  future  limitation  'Svhich  is  not  destructible  by  the  persons 
for  the  time  being  entitled  to  the  property  subject  to  the  future  limita- 
tion, except  with  the  concurrence  of  the  individual  interested  under  that 
limitation."  The_jl£eils_in  question  contain  certain  express  powers  of 
revocation.  The  equitable  owners  of  the  estate  have  therein  expressly 
reserved^^e  right  at  any  and  all  times  "to  alter,  change,  revoke,  annul 
and  destroy  all  and  every  the  trusts  hereby  created  as  respects  their 
respective  shares  and  interests  in  the  premises,  and  to  declare,  direct 
and  appoint  such  other  uses  and  trusts,  if  any  concerning  their  respec- 
tive shares  and  interests  in  the  said  trust  estate  or  any  part  thereof,  as 
they  shall  respectively  choose  or  think  proper,  anything  herein  con- 
tained to  the  contrary  notwithstanding." 

These  pojVBrs^xjearly  provide  for  a  complete  revocation  of  the_trusts 
at  any  time,  and  thereby  remove  ^hecase~ from  tHe  rule  against  per- 
petuities. 

But  it  is  argued  f or_the_plaintiff  that,  admitting  the  interest  of  the 
beneficiajowners  to  be  vested,  and  alienable^  tTie~^xistence^  of  the  legal 
estate  in  the  trustees  witK  a  power  of  sal£_nt  ijicIefimt£^uration^vhich 
may  be  exercised  after  the  expiration  of  lives  in  being  and  twenty-one 
years,  tends  to  a  perpetuityj  and  that,  under  the  authorities,  a  power 
of  sale  conferred  upon  one  not  the  owner  of  the  beneficial  interest  in 
land,  if  it  may  be  exercised  at  an  indefinite  or  too  remote  period  is 
void. 

It  is  true  that  if  an  inibiiiited  indestructible  power  exists,  it  does 
re stram  trej~aTienationJby_the  one,  who,.,jub]cct_to_jhjit  power,  is  the_^ 
owner  of  thfe  fee.     "A  power  of  sale  suspended  indefinitely  over  the 


Ch.  3)  KESTRAINT   ON    ALIENATION  513 

fee  is  open  to  the  same  objection  as  an  executory  devise  or  springing 
use  to  take  effect  whenever  A.  or  his  heirs  shall  do  a  given  act."  Lewis 
on  Perpetuities,  547.  Thus  in  Tullett  v.  Colville,  2  L.  R.  Ch.  (1S94) 
310,  a  devise  of  certain  property  was  made  to  trustees,  and  the  trustees 
were  directed  to  carry  on  the  business  of  the  testator  as  a  gravel  con- 
tractor "until  my  gravel  pits  are  worked  out,  and  then  sell  the  said 
gravel  pits~and  the  freehold  land  oh  which  the  same  is'situated."  The 
court  held  that  this  power  of  sale  was  too  remote  and  that  the  rule  was 
violated,  because,  while  the  gravel  pits  might  be  worked  within  the  pre- 
scribed limits  of  the  rule,  yet  they  might  not  be  so  worked  out,  and 
the  powerof  sale  might  not  go  into  operation  until  an  uncertain  and 
po cciV^'  tr,n.  rpmnffT^j^-tg  irLlbg^^futJIre'  """The'Tfue^Tea^OTrfur'tiotdihg 
sucnpowers  good,"  says  Gray  in  his  work  on  Perpetuities,  "is  that  the 
trusts  to  which  they  are  attached  must  come  to  an  end,  or  can  be  de- 
stroyed, within  the  limits  fixed  by  the  rule  against  perpetuities."  Speak- 
ing further  in  relation  to  powers,  he  says,  §  506 :  "To  sum  up  the  law 
as  to  powers  in  connection  with  settled  property:  (1)  Sometimes  the 
power  ceases  as  soon  as  the  equitable  fee  or  absolute  interest  vests  in 
possession.  (2)  Sometimes  the  power  can  be  exercised  until  the  owner 
of  the  equitable  fee  or  absolute  interest  calls  for  the  legal  estate.  (3) 
Sometimes  the  power  can  be  exercised  within  a  reasonable  time  after 
the  fee  or  absolute  interest  has  vested  in  possession,  such  reasonable 
time  being  not  over  twenty-one  years  after  lives  in  being.  (4)  Some- 
times the  power  is  created  to  be  exercised  on  a  contingency  which 
may  happen  after  the  legal  fee  or  absolute  interest  has  vested  in  pos- 
session, and  which  may  be  more  than  twenty-one  years  after  a  life  in 
being.  In  the  first  three  cases  the  power  is  not  void  for  remoteness; 
in  the  last  case  it  is." 

In  the  case  at  bar  the  powers  of  sale  in  the  trust  deeds  are  within  the 
second  class.  The  owners  of  the  equitable  fee  are  by  the  express  terms 
of  the  deeds  entitled  to  call  far  a  conveyance  of  the  legal  estate  from 
theTfustees  and  therebv  to  destroy  and  finallv "determine  the  trust.  _The 
power,  therefore,  does  not  hang  suspended  over  the  fee  like  an  unbar- 
rable  executory  devi_se,  but  is  subject  to  be  barred  and  f^p<itrnypc\  hy  tlip> 
cestuis  que  trustent,  or  any  one  of  them.  Biddle  v.  Perkins,  4  Simons, 
135 ;  Wallis  v,  ''rhurston,  10  Simons,  225.  True,  here  is  a  trust  to  sell 
for  all  time,  but  revocable  at  pleasure.  What  is  there  in  these  deeds  that 
tends  to  a  perpetuity  if  we  clearly  observe  what  that  means?  There  is 
in  these  deeds  that  which  it  is  settled  makes  the  power  valid  although 
in'Terms  perpetual. — and  that  is  the  powerof  revocation.  2  Sug.  Pow. 
472.  A  trust  an4  a  power  of  sale  that  continue  only  at  the  pleasure 
of  the  beneficial  owner  cannot  possibly  be  saidjg  be  an  ijlegal  restraint 
on* alienatiom  The  purpose  of  the  trust  was  lawful  and  in  harmony 
\vith  the  policy  of  the  law.  It  was  created  to  secure  a  more  convenient 
management  of  these  large  landed  estates,  and  less  trouble  and  delay 
4  Kales  Prop. — 33 


514 


RULE   AGAINST  PERPETUITIES 


(Part  4 


in  passing  title  to  the  grantees  who  might  from  time  to  time  purchase 
portions  of  these  distant  and  unsettled  tracts. 

A  recent  case  in  Illinois  involved  a  conveyance  to  three  trustees  in 
trust  for  an  unincorporated  company,  the  property  being  conveyed  to 
the  trustees  and  their  heirs  and  assigns  forever.  They  were  given 
power  to  sub-divide,  improve,  sell  and  convey.  The  court,  after  noting 
several  definitions  of  the  rule  against  perpetuities,  makes  use  of  the 
following  language :  "The  mere  creation  of  a  trust  does  not  ipso  facto 
suspend  the  power  of  alienation.  It  is  only  suspended  by  such  trust 
wlien  aTrust-term  is  created,  either  expressly  or  by  implication,  during 
the"existence  ot  which  a  sale  by  the  Iruste^  v'^nnlH  hp.  in  rnntrav"pritin^ 
of  the  LrusL;  vvlieiethg^  trustee  is  empowered  to  sell  the  land  without 
restrictioiTas  to  time,  the  power  of  alienation  is  not  suspended  although 
the  alienation  is  in  fact  postponed  by  The  non-action  ot  the  trustee  or, 
in  consequence  of  a  discfetfon  reposed  in  h'm  bv  the  creator  of  the 
trust.  '*'  *  *  THere  is  nothing  in  the  trust  agreement  in  this  case"" 
halving  the  slightest  tendency  to  create  a  perpetuity.  The  land  was  to 
be  conveyed  to  the  trustees  to  be  sub-divided  and  improved  and  then 
sold,  and  the  time  of  the  sale  was  left  wholly  to  their  discretion  ;  indeed 
the  whole  scheme  of  the  association  was  to  purchase,  sub-divide  and 
improve  suburban  property  for  the  purpose  of  placing  it  at  once  upon 
the  market  for  sale.  No  trust-term  was  created  and  a  conveyance  of 
the_land,  or  any  part  of  it,  at  any  time  was  no  violation  of  the  trust. 
Wherejthere  are  personsjn  being  at  the  creation  of  an  estate  ca£abj£. 
of 'conveying  an  imrnediate  and  absolute  estate  "in  fee  in  possession, 


suspension  of  the  power  of  alienation,  and  no  question  asTo" 
perp£tuities~can  arise/'    Hart  v.  Seymour,  14-/  ill.  b98,  3b  N.  K.  24^. 

There  is  nothing  whatever  done  by  the  terms  of  these  deeds,  in  the 
case  before  us,  but  to  create  an  agency  to  sell  land;  an  agency,  to  be 
sure,  that  is  to  continue  after  death  and  to  be  exercised  for  heirs, 
devisees,  grantees,  etc.,  until,  and  only  until,  any  one  sees  fit  to  put 
an  end  to  it.  But  an  agency  to  continue  after  death  being  impossible, 
the  mode  of  doing  it  was  by  a  trust  with  powers  by  which  the  ownership 
is  vested  in  trustees,  and  the  beneficial  interest  dealt  with  under  these 
powers. 

When  the  position  of  the  parties  and  of  the  property  is  considered, 
it  becomes  apparent  that  this  was  the  object  of  the  arrangement.  The 
property  was  land  bought  in  the  last  century.  The  owners  lived  in 
England  and  France.  A  sale  required  that  all  should  join,  and  agencies 
were  always  liable  to  be  revoked,  or  become  impracticable  by  settle- 
ments, so  that  there  would  be  no  delegation  of  authority.  The  remedy 
was  an  agency  that  would  continue,  and  there  could  be  none  unless  the 
title  was  transferred,  the  legal  title  thus  being  vested  in  trustees,  and 
the  equitable  title  in  the  beneficial  owners.  Thejiarti^s  by  executing 
these  de£ds_atie_mpted  to  a_ccelerate  alienation  and  avoid  any  retardmg' 
of  it.    The  purpose  of  these  deeds  was  to  raake^property  more  readily 


Ch.  3)  EESTRAINT   ON    ALIENATION  515 

marketable,  more  conveniently  alienable, — the  very  object  which  the  rule 
against  perpetuijiesjwas  adopted  to^subserve.  When  the  reason  of  the 
rule'faib,  the  rule  itself  has  no  application. 

It  may  be  proper  to  state  that  we  have  carefully  examined  the  deci- 
sions to  which  our  attention  has  been  called  by  the  learned  counsel  for 
the  plaintiff,  and  which,  perhaps,  are  not  in  complete  harmony  with 
some  of  the  views  enunciated  in  this  opinion. 

The  case  of  Slade  v.  Fatten,  68  Me.  380,  is  one  of  those  cases.  There  ^LcC^  o.  f^cuCi^ 
the  testator  devised  to  his'four  daughters  certain  portions  of  his  estate 
with  the  proviso  that  the  parts  and  proportions  devised  and  bequeathed 
to  his  four  daughters,  and  their  heirs,  instead  of  passing  into  their 
hands,  were  to  go  into  the  hands  of  two  trustees,  "to  hold,  manage  and 
dispose  of  said  parts  and  the  property  received  therefor,  for  the  use 
and  benefit  of  said  [four  daughters]  and  their  heirs,  according  to  the 
discretion  of  said  trustees." 

This  devise  is  distinguishable  from  the  Bingham  trust  in  the  impor^^ 
tant^  re  sp  ect  tliaTthe^wiUcoiitamed  no  clause  giving  tp-the  cestuis  que 
;:ht  to  revoke  or  annul  the  trust,    THF'power  of  revoca- 


reserved  in  the  trust  deeds  in  ^he  case  at  bar  makes  a  most  im- 
portant difference  between  those  deeds  and  the  devise  involved  in  Slade 
v  Patten.  The  decision  there  seems  to  be  based  on  the  conclusion  that 
no  provision  was  made  for  the  termination  of  the  trust,  but  that  it  was 
to  be  continued  for  the  benefit  of  the  "heirs"  of  the  daughters,  and 
therefore  to  continue  indefinitely.  "There  is  no  provision  for  the  ter- 
mination of  the  trust  estate,"  remarks  the  court. 

In  one  paragraph  of  the  opinion  the  court  makes  use  of  the  following 
language :  "But  assuming  it  to  have  been  the  testator's  intention  that  Sy-rrv^e^A^  J't^Ce*^.^*^ 
on  the  decease  of  his  daughters  their  respective  shares  should  go  to  the 
heirs  of  such  daughters  in  fee  simple,  still,  this  would  create  a  perpetu- 
ity, because  it  was  possible,  that  they  might  have  heirs  unborn  at  the 
testator's  death  and  in  whom  the  estate  would  not  vest  within  lives  in 
being  and  twenty-one  years  and  a  fraction  afterwards." 

This  statement  is  absolutely  incojisistent  with  the  facts  of  the  case 
as  well  as  the  well  settled  principles  of  law.  It  cannot  admit  of  doubt 
even  that  a  devise  of  property  to  a  (ianghtpr  fnr  life  and  at  lipr  dpnth  to 
her  heirs  in  fee  is  perfectly  good. 

But  the  foregoing  statement  from  the  opinion  may  be  regarded  as 
only  a  dictum.  The  real  question  which  the  court  decided  was  that 
the  word  "heirs"  was  a  word  of  general  import  and  not  limited  to 
those  persons  who  would  be  heirs  within  a  life  in  being  and  twenty-one 
years  and  a  fraction  thereafter,  and  therefore  the  trust  undertook  to 
preserve  the  estate  for  persons  who  might  become  heirs  indefinitely  and 
hence  violated  the  rule. 

The  interests  devised,  however,  were  clearly  vested  interests.  The 
legal  title  was  given  to  the  trustees,  the  equitable  fee  to  the  daughters 


516 


RULE  AGAINST  PERPETUITIES 


(Part  4 


and  their  heirs,  but  all  interests  were  present  and  vested.  The  legal 
estate  vested  in  the  trustees  at  the  testator's  death,  and  at  the  same 
time  the  entire  equitable  interest  limited  to  the  daughters  and  their 
heirs  vested  in  them.  No  other  interest  was  devised  or  bequeathed. 
All  the  estates  and  interests  that  were  ever  to  arise  verted  immediately 
upon  the  testator's  deattrr  Afiei  cuiieLLly  stating  die  rilTe,  the  court 
says':  "in  view  of  the  trust,  therefore,  it  must  be  deemed  void  as  ere* 
ating  a  perpetuity." 

From  the  expressions  in  the  opinion  to  which  we  have  referred,  it 
seems  tohave  been  assumed  tha^a  trus^jwhich_will  not  or  may  noT 
teriTTihate^'ithin  lives  m  bemglmd  twenty-on^jyeaTS3nd_a_frad-U3n 
afte_rwardsjs_yoid"as  creating  a  perpetuity,_Butihis  i-^  not  mrrert — It 
cannot  be  sustained  eitheruponprinci£k_^^  A  future  limi- 

tation~tliat  may  not  vest  within  that  period  creates  a  perpetuity,  and^is 
theret^ore  void.  But  ajimitation  that  must  vest,  if  at  all,  within  jttje" 
period  does  not  create_a^  perpetuity,  and  it  makes  no  difference  when 
the  trust  or  interest  limited  teiTninates,Tt  it  has  vested  within  the  pe- 
riodT'  "All  thaMsjeqiiired  by  the"Tntr-a^mTSt-^pefpetuitiesls7^diart^ 
estate  orTurFprpst  shall_v^st^ltlim  the  prescribed  period.  Seaver  v. 
Fitzgerald,  141  Mass.  401,  403,  6  N.  E.  73.  The  right  oT^ossession  or 
enjoyment  may_be  postponed  longer. 

The  reasoning  of  the  court  was  wrong, 
the  testator's  daughters,  however ;    for. 


No  injustice  was  done  to 
owing  to  his  having  used  lan- 
guage which  by  itself  expressed  an  absolute  gift  to  his  daughters  and 
their  heirs,  followed  by  a  proviso  that  trustees  should  hold  the  legal 
title  in  trust  for  them  and  their  heirs,  the  court,  by  rejecting  the  proviso 
m  reference  to  the  trustees  as  void,  decided  that  there  was  an  absolute 
gift  by  devise  to  the  daughters  which  took  effect. 

The  opinion,  therefore,  in  Slade  v.  Patten  cannot  be  sustained  upon 
, authority.  Barnum  v.  Barnum,  26  Md.  Il9,  90  Am.  DecTSH,  is  a  case 
wlTereThe  owner  ~ot  hotel  property  devised  it  to  trustees  with  directions 
to  lease  it,  fcut  prohibifed^alienirtinnrdufihg^^the^erin-  o-f-a-tTust  which 
exceeded  liv'es'ln  being  and  twenty-one  years  tliereaftgr:  The  court 
held  "such  a  trust  void,  and  gave  ettect  to  an  alternative  limitation  con- 
'tained  in  the  will.  Tr]  this^case  there  was  an  absolute  suspension  of  the 
power  of  alienation  for  a  period  prohibited  bythe  rules  ot  law7  unlike 
the  case  at  bar.       ~~~~ "'  "~~ 

The  cases  of  Deford  v.  Deford,  36  Md  168,  Gouldsboro  v.  Martin, 
41  Md  488,  and  Collins  &  Bernard  v.  Foley,  63Jdd.  162,  52  Am.  Rep. 
505,  would  seem  to  support  the  dictum  of  the  reasoning  in  Slade  v. 
Patten,  and  these  Maryland  cases  are  the  only  ones  to  which  the  atten- 
tion of  the  court  has  been  called,  or  which  in  the  examination  of  the 
case  before  us,  we  have  been  able  to  find,  supporting  that  doctrine.  But 
the  doctrine  of  these  cases  is  opposed  to  the  great  trend  of  authority 
elsewhere,  and  Gray,  in  his  very  thorough  and  valuable  work,  speaks 


Ch,  ?>) 


RESTRAINT   ON    ALIENATION 


517 


of  these  cases  as  grave,  practical  errors  growing  out  of  confound- 
ing  the  rule  againstperpetuities  with~the  rules  disallowing  restraints 
on  aTienationT 


It  is  unnecessary  to  consider  any  of  the  other  objections  raised, 
inasmuch  as  the  conclusion  to  which  the  court  has  arrived  determines 
the  validity  of  the  trust  deeds,  and  thus  disposes  of  the  case. 

Judgment  for  defendant. 


ARMSTRONG  v.  BARBER. 
(Supreme  Court  of  Illinois,  1909.    239  111.  389,  88  N.  E.  24G.) 

Carter,  J.*  *  *  *  All  the  reasons  for  holding  that  George 
and  Elsie  take  a  present  interest  at  testator's  death  are  alike  applicable 
to  Arthur's  one-third.  If  it  be  conceded  that  as  to  Arthur's  share  the 
trusteeship^n  the  discretion  o|_the  trustees  may  last  longer  than  ten 
years  from  the  probate,  and  even  during  Arthur's  whole  life,  still  that 
does  not  render  the  provisions~void,  because  his  interest  vested,  as~drd 
those  of  George  and  Elsie,  at~tlfe  date  oF  testator's  death.  If  it  be  ar- 
gued  tnat  this  might""cfegten5n:  inde^tructibte  Trust  in~llie  trustees,  the 
answer  is  as  suggested  in  Gray  on  Perpetuities,  (2d  Ed.  §  121f),  that 
this  doer'not  violate  the  rule  against  perpetuities,  as  that  rule  "is  con- 
cerned only  with  the  beginning  of ^ntpfp^ts:"  that  said  rule  "settles 
th^lllTiy  ulLliiu  vvllllll  luLerests  must  vest,l3'ut  when  once  vested  they 
are  all,  present  and  future  alike,  subject  to  the  same  restraints  against 
alienation,  and  with  this  the  rule  against  perpetuities  has  nothing  to  do." 
In  England  the  creation  of  such  indestructible  trusts  of  such  absolute 
equitable  interests  is  not  permitted.  Saunders  v.  Vautier,  4  iJeav.  115 ; 
Ha?bin  v.  Masterman,  [1894]  2  Ch.  184;  Weatherall  v.  Thornburgh, 
8  Ch.  Div.  261 ;  Gray  on  Restraints  on  Alienation,  (2d  Ed.)  §§  105- 
112.  In_  this  .^tntp_such  trusts  have  been  permitted.  Eunt  v.  Lunt, 
supra,  108  111.  307.  The  authorities  In  this  and  other  jurisdictions 
bearing  on  this  question  are  reviewed  at  some  length  in  Kales  on  Fu- 
ture Interests,  sections  286  to  296,  inclusive.  Once  such  trusts  are 
permitted  it  follows  that  there  must  be  some  limits  as  to  the  length  of 
time  they  can  be  made~to  last.  It  is  suggested  in  Gray  oiTFerpctuijie's, 
(2cri!.d.  ^  l.^li,j  that  it  is  perhaps  likely  that  the  same  period  as  that 
prescribed  bythe  rule  against~perpetuTties  should  be  taken,  but^the 
author  adds  tfiaTTtis  open  to  the  courts  to  adopt  spme  otheF^perTod,' 
if'Tound  advisable.  There~are  intimations  in  some  of  the"  authorities 
thaT7  in  a  case  like  the  present,  any  provision  which  permits  the  trustees 
to  retain  property  in  trusteeship  for  ten  years  from  the  probate  of  the 
will  is  wholly  void,  the  trusteeship,  however,  still  remaining,  with  the 
difference  that  instead  of  being  indestructible  for  the  beneficiaries  who 

4  The  statement  of  facts  is  omitted  and  only  part  of  the  opinion  is  given. 


-OW-»'-»»-s 


518  RULE   AGAINST   PERPETUITIES  (Part  4 

are  of  age  and  who  have  an  absohite  indestructible  equitable  interest 
may  compel  the  trustees  to  transfer  the  legal  title  to  them  although  the 
time  specified  in  the  will  for  the  termination  of  the  trust  has  not  arrived. 
This  court,  in  Kohtz  v.  Eldred,  208  111.  60,  69  N.  E.  900,  has  stated 
that  such  a  trust  will  terminate  as  soon  as  the  object  for  which  it  was 
established  has  been  accomplished.  The  question  when  this  trust  niay_ 
end  is,  however,  not  necessary  for  the  decision  in  this  case.  Admit- 
ting, as  most  favorable  to  appellee's  contention,  that  the  probate  of 
this  will  might  have  been  delayed,  still  that  does  not  in  any  way  mili- 
tate against  the  legal  and  equitable  interests  vesting  thereunder  immedi- 
ately upon  the  death  of  the  testator.  At  most,  the  failure  to  probate 
promptly  could  only  delay  the  distribution  of  the  funds,  and  such  dis- 
tribution, as  we  have  pointed  out,  could  be  controlled  by  the  courts 
under  the  rules  governing  restraints  on  alienation  of  property.    *    *    * 


Ch.  4)  LIMITATIONS  TO  CLASSES  519 

\ 

CHAPTER  IV 
LIMITATIONS  TO  CLASSES 


LEAKE  V.  ROBINSON. 

(Court  of  Chancery,  1817.     2  Mer.  363.) 

John  Milward  Rowe,  by  his  will,  dated  the  17th  of  June,  1790,  gave 
to  the  plaintiffs  (whom  he  appointed  executors,)  all  his  three  per  cent, 
and  four  per  cent,  stock,  upon  trust,  in  the  first  place,  to  pay  to  his 
wife,  Sukey  Rowe,  during-  her  life,  two  several  annuities  of  £245  8s., 
and  £168,  out  of  the  dividends  of  the  four  per  cents,  (which  with  cer- 
tain other  provisions,  were  declared  to  be  in  bar  of  dower  and  thirds,) 
and  in  the  next  place,  to  pay  and  apply  an  annuity  of  £54  12s.  (there- 
by given)  towards  the  maintenance,  education,  or  advancement  of  his 
grandson,  William  Rowe  Robinson,  until  he  should  attain  twenty-five ; 
and  from  and  after  his  attainment  of  that  age,  to  pay  him  the  said 
annuity  during  his  life ;  and  after  his  decease,  the  testator  bequeathed 
the  principal  sum  of  £1,820,  (part  of  his  three  per  cent,  annuities,)  or 
so  much  thereof  as  should  produce  the  annual  sum  of  £54  12s.  as 
after  mentioned ;  and  after  the  decease  of  his  wife,  he  directed  that 
his  said  executors  should  pay  and  apply  the  annual  sum  of  £145,  (part 
of  the  annuity  of  £245  8s.)  and  the  annual  sum  of  £40  (part  of  the 
annuity  of  £168,)  towards  the  maintenance  of  the  said  W.  R.  Robin- 
son till  twenty-five;  and  afterwards  for  his  life  and  after  his  decease, 
bequeathed  the  principal  sums  of  £4,846  16s.  8d.,  three  per  cents,  and 
£1000  four  per  cents,  as  after  mentioned. 

The  testator  then  directed  the  plaintiffs  to  apply  the  dividends  of 
£3,333  6s.  8d.,  three  per  cents,  for  the  maintenance  and  advancement 
of  his  grandson,  Charles  Mitford,  until  twenty-five,  and  upon  his  at- 
taining that  age,  to  transfer  to  him  the  said  principal  sum  of  £3,333 
6s.  8d.,  three  per  cents. 

He  then  gave  to  the  plaintiffs  £1,000  India  stock  upon  trust,  to  ap- 
ply the  dividends,  &c.  thereof,  and  also  the  annual  sum  of  £100, 
(part  of  the  dividends,  &c.  of  his  three  per  cent,  stock,)  or  so  much  as 
they  should  think  fit,  towards  the  maintenance,  education,  and  ad- 
vancement of  his  said  grandson,  William  Rowe  Robinson,  until  twen- 
ty-five ;  and  upon  his  attaining  that  age,  he  gave  to  him  the  dividends 
of  the  said  stock  during  his  life ;  and  after  his  decease,  he  bequeathed 
the  said  £1,000  East  India  stock,  and  the  sum  of  £3,333  6s.  8d.  three 
per  cents,  (the  dividends  whereof  then  produced  £100  per  ann.)  as 
after  mentioned. 


520  RULE  AGAINST  PERPETUITIES  (Part  4 

The  testntor  then  devised  and  bequeathed  to  the  plaintiffs,  their 
heirs,  &c.  all  his  real  estates  at  Westham  and  Pevensey,  of  which  he 
was  seised  in  fee,  or  as  mortgagee  in  possession,  or  otherwise,  and 
the  principal  sums  charged  thereon,  and  the  ground-rents  issuing  out 
of  his  messuages  in  Hedge  Lane,  upon  trust  to  apply  the  said  ground- 
rents,  and  the  rents  and  profits  of  his  said  estates,  and  interest  of  the 
said  mortgage  moneys,  or  such  parts  as  they  should  judge  proper, 
towards  the  maintenance,  education,  or  advancement  of  his  said 
grandson,  William  Rowe  Robinson,  until  twenty-five;  and  after  his 
attaining  that  age,  to  pay  to,  or  permit  him  to  have  and  receive  the 
same  during  his  life,  and  after  his  death,  (in  case  he  should  leave  any 
lawful  issue,)  to  pay  and  apply  the  said  several  annual  sums  of  £54 
12s.  £145  8s.  £100  and  £40,  and  the  dividends  of  the  said  £1,000  India 
stock,  and  the  rents  and  profits  of  the  said  estates  at  Westham  and 
Pevensey,  and  the  interest  of  the  said  mortgage  moneys,  and  the  said 
ground  rents,  or  such  part  thereof  as  they  (the  plaintiffs)  should  think 
proper,  unto,  and  for  the  maintenance,  education,  and  advancement 
of  all  and  every  the  child  and  children  of  the  said  William  Rowe 
Robinson,  lawfully  begotten,  until  (being  sons,)  they  should  respec- 
tively attain  twenty-five,  or  (being  daughters,)  should  attain  such 
age,  or  marry  with  the  consent  of  parents  or  guardians ;  and  then  to 
pay,  transfer,  and  assign  an  equal  proportion  of  the  said  several  prin- 
cipal sums  of  £1,820,  £4,846  16s.  8d.,  and  £3,333  6s.  8d.  three  per 
cents,  £1,000  four  per  cents,  and  £1,000  East  India  stock,  and  the  said 
ground-rents  and  estates  at  Westham  and  Pevensey,  and  the  mort- 
gage moneys,  and  all  the  interest,  dividends,  or  rents  due  or  payable 
in  respect  of  the  same,  "to  such  child  or  children,  being  a  son  or  sons, 
who  shall  attain  such  age  or  ages  of  twenty-five  as  aforesaid,  and  to 
such  child  or  children,  being  a  daughter  or  daughters  wdio  shall  at- 
tain such  age  or  ages,  or  be  married  as  aforesaid,  his,  her,  or  their 
heirs,  executors,  or  administrators ;  if  only  one  such  child,  or,  having 
been  more,  if  all  but  one  should  die,  before  their  shares  should  be- 
come payable  as  aforesaid,  then  the  whole  to  such  only,  or  surviving 
child." 

The  testator  then  directed  as  follows ;  that  "in  case  the  said  Wil- 
liam  Rowe  Robinson_shall  happen  to  die  without  leaving  issue,  living 
at  tlTe~time"of  his  decease,  or  leaving  suchTthev  shall  die~airbeIore 
any  of~tliem  shall  attain  twenty-five^  if  sons,  and  if  daughters,  before 
they  shall  attain  siich  age,  or  be  married  as  aforesaid ;"  then  the  plain- 
tiffs  should  pay,  apply,  and  transfer  the  said  principal  sums  of  stock," 
gro^d-rents,  ejtates_and  mortgage  moneys,  "unto  aiicl  amolTgst  all 
and  every  the  brothers  and  sisters  of  the  said  Willjani  RoweRobin- 
son,  share  and  share  alike,  upon  his,  her,  or  their  attaining  twenty- 
five,  iflTbrother  or  brothersTand  it  a  si^ei-tii  "Sisters,  at  sucli  age  o r 
marriage,  with  such  consent  as  aforesaid." 

He  then  directed  the  plaintiffs  to  invest  the  surplus  or  savings  to 
arise  out  of  the  said  several  annuities,  dividends,  ground  rents,  and 


Ch.  4)  LIMITATIONS  TO   CLASSES  521 

interest,  until  his  said  grandson,  William  Rowe  Robinson,  or  his  is- 
sue, (if  any),  or  his  brothers  and  sisters  who  should  become  entitled 
as  aforesaid,  should  attain  twenty-five,'  or  be  married  as  aforesaid, 
and  pay  and  apply  the  same  for  the  benefit  of  the  person  or  persons 
entitled,  upon  the  attainment  of  such  age  or  marriage  respectively. 

The  testator  then  (after  making  certain  provisions  out  of  the  re- 
mainder of  his  stock  before  bequeathed  to  the  plaintiffs  for  others  of 
his  grandchildren,)  gave  to  the  plaintiffs,  their  executors,  &c.  all  sums 
of  money  then  due  to  him  on  mortgage,  (except  those  secured  on  the 
estates  at  Westham  and  Pevensey,)  upon  trust,  to  pay  one  moiety  of 
the  interest  to  his  daughter  Airs.  Robinson,  for  her  life,  and  after  her 
death,  to  her  husband,  George  Robinson,  for  his  hfe,  and  after  the 
death  of  the  survivor,  in  and  towards  the  maintenance  and  advance- 
ment of  W.  R.  Robinson,  till  twenty-five,  and  after,  &c.  to  W.  R. 
Robinson  for  life,  and  after  his  decease,  towards  the  maintenance  and 
advancement  of  all  and  every  his  child  and  children,  till  twenty-five, 
or  marriage  as  aforesaid,  and  upon  trust,  to  pay  or  assign  an  equal 
proportion  of  such  moiety  of  the  said  mortgage  moneys,  to  such 
child  or  children  respectively,  and  in  case  the  said  William  Rowe  Rob- 
inson should  die  without  leaving  issue,  or  all  such  issue  should  die 
before  twenty-five,  or  marriage  as  aforesaid,  then  upon  trust  to  pay 
and  divide  the  same,  unto  and  among  all  and  every  the  brothers  and 
sisters  of  the  said  William  Rowe  Robinson,  share  and  share  alike,  at 
their  respective  ages  of  twenty-five,  or  marriage  as  aforesaid ;  with 
interest  in  the  mean  time,  for  such  brothers  and  sisters,  as  before  di- 
rected with  respect  to  the  issue  (if  any)  of  the  said  William  Rowe 
Robinson. 

He  then  directed  the  plaintiffs  to  pay  the  other  moiety  of  the  inter- 
est due  to  him  on  mortgage,  to  his  daughter  Frances  Dippery  Mit- 
ford,  and  her  husband  W^illiam  Mitford,  for  their  Uves  and  the  life  of 
the  survivor,  and  after  the  decease  of  the  survivor  of  them,  to  pay 
and  dispose  of  the  said  interest  and  principal  moneys,  to  and  among 
their  children,  in  the  same  manner  as  he  had  before  directed,  with  re- 
spect to  the  issue  (if  any)  of  the  said  William  Rowe  Robinson. 

The  testator  then  gave  to  the  plaintiffs,  their  heirs,  executors,  &c. 
all  the  residue  and  remainder  of  his  real  and  personal  estate  and  ef- 
fects not  before  disposed  of,  upon  trust  to  sell,  (in  case  his  daughters 
should  think  proper  and  so  direct,)  and  lay  out  the  produce  in  the  pur- 
chase of  real  estates  on  government  securities,  and  out  of  such  real 
and  personal  estate  till  disposed  of,  and  the  produce,  &c.  to  pay  one 
moiety  of  the  rents,  interest,  and  dividends  to  his  daughter,  Mrs. 
Robinson  for  her  life,  and  after  her  death,  to  her  husband  for  his  life, 
and  after  the  death  of  the  survivor,  to  pay  and  apply  the  said  moiety, 
or  so  much  thereof  as  they  should  think  fit,  unto,  or  for  the  mainte- 
nance, education,  and  advancement  of  the  said  child  and  children  of 
the  said  Elizabeth  Grace  Robinson,  by  the  said  George  Robinson, 
(other  than  and  except  the  said  W.  R.  Robinson,)  until  they  should 


522  RULE   AGAINST  PERPETUITIES  (Part  4 

attain  twenty-five,  or  marry  as  aforesaid,  in  equal  shares  and  propor- 
tions, and  after  the  attainment  of  such  age  or  marriage,  to  pay  and 
transfer  all  such  moiety  of  the  residue  or  produce  thereof,  to  and 
among  such  child  or  children,  in  equal  shares  and  proportions,  and 
with  regard  to  the  remaining  moiety,  he  directed  that  his  daughter 
Mrs.  Mitford,  and  her  husband,  and  the  child  or  children  (if  any)  of 
them,  and  their  issue,  should  have  and  enjoy  the  same,  in  the  same 
manner  as  before  expressed  with  regard  to  his  daughter  Mrs.  Robin- 
son and  her  family.  The  testator  then  directed  that  in  case  of  the 
death  of  any  of  his  said  grandchildren  before  attaining  twenty-five  or 
marriage,  the  shares  of  them  so  dying,  should  go  to  the  survivors  of 
their  respective  brothers  and  sisters ;  and  in  case  of  the  death  of  ei- 
ther of  his  said  two  daughters,  without  leaving  issue  by  her  said  hus- 
band, living  at  her  decease,  or  any  child  or  children  of  such  issue,  then 
and  in  such  case,  the  share  or  proportion  of  such  part  of  his  estate  or 
effects  given  by  him,  or  intended  for  such  issue,  or  the  child  or  chil- 
dren of  such  issue,  should  go  to  and  be  divided  amongst  the  issue  of 
his  surviving  daughter,  by  her  then  husband,  or  the  child  or  children  of 
such  issue  who  might  be  dead,  equally,  share  and  share  alike ;  and  in 
case  both  his  said  daughters  should  die  without  issue  living  at  their 
respective  deceases  by  their  then  respective  husbands,  or  any  child  or 
children  of  such  issue  who  might  be  deceased,  then  he  directed  that 
each  of  his  said  daughters,  (subject  to  the  life  interest  of  their  then 
husbands,)  might  (notwithstanding  their  coverture,)  give  and  dispose 
of  her  share  and  proportion  of  his  said  estate  and  effects  to  such  per- 
son or  persons  as  she  might  think  proper,  either  by  deed  or  will. 

On  the  17th  of  June,  1790,  when  the  testator  made  this  will,  his 
grandson  William  Rowe  Robinson^  had_one  brother  a.nd  three  sisters 
living.  Between  the  date^f  the  will  and  the  testator's  deathj^he  had 
another  sister  born. 

OirTIie~ytli  of  February,  1792,  the  testator  died.  Between  the 
death  of  the  testator  and  the  death  of  Williamn^ve  Robinson,  the 
saicf^VjllianLRowe  Robinson  had  twaJJother  brothers  born.  On  tlie 
10th  of  October,  1800,  William  Rowe  Robinson  died ;  having  attained 
twenty-five  without  issue,  unmarried  and  intestate ;  and  another  sister 
was  born  after  his  death. 

At  the  time  of  thetestator's  will,  and  of  his  death,  Mr.  and  Mrs. 
Mitford  had  five  children,  one  of  whom  was  since  dead,  leaving  issue ; 
and  after  the  testator's  death,  they  had  another  child. 

Sukey  Rowe,  the  testator's  widow,  survived  him,  and  died  in  1804, 
having  first  made  her  will,  and  appointed  Mr.  Mitford,  and  another, 
executors  thereof.  Mrs.  Mitford  was  also  dead,  and  her  husband  had 
taken  out  administration. 

Under  these  circumstances,  the  question  for  the  decision  of  the 
court  was,  whether,  in  the  event  which  happened,  of  the  death  of  Wil- 
liam Rowe  Robinson  without  issue,  the  limitation  to  his  brothers  and 
sisters,  to  take  effect  on  their  attainment  of  the  age  of  twenty-five,  or 


Ch.  4)  LIMITATIONS   TO   CLASSES  523 

marriage  as  aforesaid,  was  a  good  and  effectual  limitation,  or  was 
void,  as  being  too  remote.  And  this  principally  depended  on  the  de- 
termination of  two  other  questions,  viz.  first,  whaLxlasses^ofj^ersons 
were  those  intended  by  the  testator  to  take^  in  the  event  of  William 
Row^"^obinsOTndying  without  issue,  or  witliout  issue  living  to  attain 
the  age~onwenty-five,  under  the  description  of  ^^H  and  every  the 
brothers  ancTsTsters  of  the~said  William  Rowe  Robinson ;"  because,  if 
that  hmitation  were  held  to  extend  to  all  the  brothers  and  sisters  who 
mi£Jit_be^jx)n2^and  (in  the  event  vvhidT  haj^ngjjjld)  artually  were  born, 
after  the  death  of  the  testator,  and  the  period  of  vesting  was  post- 
poned byTHe'  wHTtill  their  attainment  of  tjie  age  of  twenty-five,  it  is 
obvious  ThaT  niore'  than  twenty-one  years,  ^the  period  beyond  which 
a  limitafion  by^ay  of  executory  devise  cannot  take  effect)  might  pass 
after  the  death  of  the  testator  before  the  arrival  of  the  limited  time : 
and  this,  consequentlyTgave^rise^fo  tHe^  second  question ;  which  was, 
whether  the  attainment  of  twenty-five  was  in  fact  the  period  assigned 
for  thejvesting  o^f  tlie  several  shares,  or  was  to  be^^akenjonly  as  the 
tim^fixed  for  tlie  payment  of  the  several  shares  which  had  already 
V e sted  at  some  antecedent  period . 

The:  Master  of  the  Rolls  [Sir  William  Grant].  The  first 
point  to  be  determined  in  this  case  is,  Who  are  included  in  the  de- 
scription of  brothers  and  sisters  of  William  Rowe  Robinson,  and  of 
chiklFen  ofl^r.  and  Mrs.  TloljmsonT^ancl  Mr.  an^Mrs.  TMitford — 
whether  those  only  wh6~were  in  betiTg"afThe  time  of^Tie  t^sTator's 
death,  or  all  who  miglTFTome  in " esse^uiWg  the  lives  of  the  respec- 
tive tenants  for  life.  Upontliat  pointnTcTnotTee  how  a"  question- 
can"  possibly  be  raised.  Not  only  is  the  rule  of  construction  com- 
pletely settled,  but  in  this  case,  I  apprehend  the  actual  intention  of  the 
testator  to  be  perfectly  clear.  Indeed,  I  believe,  wherever  a  testator 
gives  to  a  parent  for  life,  with  remainder  to  his  children,  he  does  mean 
to  include  all  the  children  such  parent  may  at  any  time  have.  That  is 
not  an  artificial  rule.  It  is  the  rule  which  excludes  any  of  the  chil- 
dren that  is,  and  has  been  called  an  artificial  rule — namely,  the  rule  in 
Andrews  v.  Partington,  3  Bro.  C.  C.  60,  401,  and  other  cases  of  that 
description,  which  excludes  all  who  may  be  born  after  the  eldest  at- 
tains twenty-one.  The  case  of  Ellison  v.  Airey,  1  Ves.  Ill,  might 
have  been  decided  the  other  way  without  at  all  affecting  this  ;  for  there 
it  was  the  death  of  one  person  that  determined  what  children  of  an- 
other person  were  entitled  to  take.  It  is  impossible  to  impute  to  this 
testator  an  intention  to  exclude  all  the  children  of  his  grandson,  Wil- 
liam Rowe  Robinson,  who  should  not  be  living  at  his  (the  testator's) 
own  death,  that  grandson  having  no  children  at  the  time  the  will  was 
made.  All  the  bequests  to  the  children  of  his  daughters  are  made  in 
as  comprehensive  terms. 

As  to  the  brothers  and  sisters  of  William  Rowe  Robinson,  I  do  not 
apprehend  that  it  is  at  all  necessary  to  speculate  on  the  question  sug- 
gested by  Mr.  Bell,  viz.  who  would,  within  the  meaning  of  the  will, 


524  RULE  AGAINST  PERPETUITIES  (Part  4 

come  under  the  description  of  brothers  and  sisters — whether  only  the 
children  of  both  parents,  or  such  as  one  of  them  might  have  after  the 
death  of  the  other. 

Our  question  is,  whether  the  testator's  bounty  was  confined  to  such 
brothers  and  sisters  (in  whatever  seiTse  these  words  hiay  Tje'taRen)  as_ 
should  be  livmg  at  his  o\vn  dea^h.  According  to  the  established  rule 
of  construction,  and  what  I  conceive  tojiave  been  the  actual  intention 
of  the  testator,  all  who  were  living  at  the  time  of  William  Rowe  Rob- 
inson'''s  death  mustbe  held  to  be  comprehended  in  the  description. 

Having  ascertainedthe^persons  intended  to  take,  the  next  question 
is  at  what  time  the  interests  given  to  them  were  to  vest. 

There  is  no  direct  gift  to  any  of  these  classes  of  persons.  It  is  only 
through  the  medium  ot  directions  given  to  the  Tinistees^  that  we  can 
ascertain  tITe~be"heIits^tended  for  theiriT  Thelrustees  have  a  discre- 
tionary power  to  apply  what  portion  oi  the  income  they  think  fit,  for 
the  support,  maintenance,  and  advancement  of  the  infant  legatees. 
Except  in  one  instance,  the  testator  does  not  say  what  is  to  become 
of  the  surplus  interest.  In  the  case  of  the  property  first  given  to 
William  Rowe  Robinson  for  life,  the  surplus  interest  is  to  accumu- 
late, and  to  be  paid  with  the  capital,  either  to  himself,  or  to  his  chil- 
dren, or  to  his  brothers  and  sisters,  when  they  shall  have  attained  the 
age  of  twenty-five. 

No  direction  being  given  as  to  the  surplus  interest  of  the  two  moie- 
ties of  the  mortgage  money,  it  will  make  part  of  the  residue ;  for,  al- 
though the  interest  of  residue  goes  with  the  capital,  that  of  particular 
legacies  does  not,  even  supposing  it  be  the  payment,  and  not  the  vest- 
ing, that  is  postponed.  It  is  a  mistake  to  suppose  that  the  trustees 
are  authorized  to  apply  any  part  of  the  capital  for  the  benefit  of  any 
legatee  not  attaining  twenty-five.  It  is  only  in  the  residuary  clause 
that  produce  is  spoken  of,  and  it  is  evident  that  the  direction  relates 
only  to  the  income  of  the  property,  or  of  the  produce  thereof  when  it 
should  be  sold. 

As  to  the  capital,  there  being,  as  I  have  already  said,  no  direct  gift 
to  the  grandchildren,  we  are  to  see  in  what  event  it  is  that  the  trustees 
are  to  make  it  over  to  them.  There  is,  with  regard  to  this,  some  dif- 
ference of  expression  in  the  different  parts  of  the  will.  In  some  in- 
stances the  testator  directs  the  payment  to  be  to  such  child  or  chil- 
dren as  shall  attain  twenty-five.  In  others  the  payment  is  to  be  made 
upon  attainment  of  the  age  of  twenty-five.  In  the  residuary  clause  it 
is,  from  and  immediately  after  such  child  or  children  shall  attain  the 
age  of  twenty-five,  that  the  trustees  are  to  transfer  the  property.  But 
I  think  the  testator  in  each  instance  means  precisely  the  same  thing, 
and  that  none  were  to  take  vested  interests  before  the  specified  pe- 
riod. The  attainment  of  twenty-five  is  necessary  to  entitle  any  child 
to  claim  a  transfer.  It  is  not  the  enjoyment  that  is  postponed;  for 
there  is  no  antecedent  gift,  as  there  was  in  the  case  of  May  v.  Wood, 
3  Bro.  C.  C.  471,  of  which  the  enjoyment  could  be  postponed.     The 


Ch.  4)  LIMITATION'S   TO   CLASSES  525 

direction  to  pay  is  the  gift,  and  that  gift  is  only  to  attach  to  children 
that  shall  attain  twenty-five.  The  case  of  Batsford  v.  Kebbell,  3  Ves. 
363,  was  much  more  favorable  for  the  legatee ;  for  the  interest  of  the 
fund  was  given  to  him  absolutely  until  he  should  attain  the  age  of 
thirty-two,  at  which  time  the  testatrix  directed  her  executors  to  trans- 
fer to  him  the  principal  for  his  own  use.  He  died  under  thirty-two. 
Lord  Rosslyn  said,  "There  is  no  gift  but  in  the  direction  for  payment, 
and  the  direction  for  payment  attaches  only  upon  a  person  of  the 
age  of  thirty-two.    Therefore  he  does  not  fall  within  the  description." 

It  was  supposed  that  the  clauses  in  the  will,  where  the  word  "such" 
is  left  out,  might  be  construed  differently  from  those  in  which  it  is  in- 
serted ;  and  that,  although  where  the  payment  is  to  be  to  such  child  or 
children  as  shall  attain  twenty-five,  nothing  could  vest  in  any  not  an- 
swering that  description,  yet  where  the  payment  is  to  be  to  children 
upon  the  attainment  of  twenty-five,  or  from  and  after  their  attaining 
twenty-five,  the  vesting  is  not  postponed.  If  there  were  an  antecedent 
gift,  a  direction  to  pay  upon  the  attainment  of  twenty-five  certainly 
would  not  postpone  the  vesting.  But  if.  I  give  to  persons  of  any  de- 
scription when  they  attain  twenty-five,  or  upon  their  attainment  of 
twenty-five,  or  from  and  after  their  attaining  twenty-five,  is  it  not  pre- 
ciselv  the  same  thing  as  if  I  gave  to  such  of  those  persons  as  should 
attain  twenty-five?  None  but  a  person  who  can  predicate  of  himself 
that  he  has  attained  twenty-five,  can  claim  anything  under  such  a  gifl. 

I  am  aware,  however,  that  although,  with  regard  to  particular  lega- 
cies, this  doctrine  has  not  been  controverted,  yet  the  case  of  Booth 
V.  Booth,  4  Ves.  399,  may  be  considered  as  throwing  some  doubt  upon 
it,  when  it  is  a  residue  that  is  the  subject  of  the  bequest.  There  is 
certainly  a  strong  disposition  in  the  court  to  construe  a  residuary 
clause  so  as  to  prevent  an  intestacy  with  regard  to  any  part  of  the 
testator's  property.  With  all  that  disposition,  it  is  evident  that  Lord 
Alvanley  felt  that  he  had  a  difficult  case  to  deal  with.  Some  violence 
was  done  to  the  words  in  favor  of  what  he  conceived  to  be,  and  what 
in  all  probability  was,  the  intention.  That  intention  however  was 
collected  from  circumstances  that  do  not  occur  in  the  present  case. 
Both  the  legatees  were  adults  at  the  time  the  will  was  made.  Lord 
Alvanley  admits  that,  if  it  had  been  otherwise,  it  might  have  made 
some  ingredient  in  the  argument.  Then  the  whole  interest  was  given 
to  them  absolutely, — a  circumstance  which  has  always  been  held  to 
furnish  a  strong  presumption  of  intention  to  vest  the  capital,  and 
which  is  not  afforded  by  a  direction  for  maintenance  out  of  the  in- 
terest, as  was  decided  in  the  case  of  Pulsford  v.  Hunter,  3  Bro.  C.  C. 
416.  The  legatees  might  both  live  to  extreme  old  age,  without  the 
event  ever  happening  on  which  the  legacy  was  made  payable.  There 
was  no  survivorship  between  them,  nor  was  there  any  bequest  over 
in  the  event  of  the  death  of  both  or  either;  so  that  intestacy  must 
have  been  the  consequence  of  death  before  marriage.  In  every  one 
of  these  particulars  this  case  differs  from  that  of  Booth  v.  Booth. 


526  RULE   AGAINST   PERPETUITIES  (Part  4 

They  agree  in  nothing,  except  that  the  words  "from  and  immecHately 
after"  occur  in  both. 

The  case  of  Booth  v.  Booth  is  therefore  not  merely  no  authority 
for  what  is  contended  for  by  the  grandchildren,  but  it  is  a  strong  au- 
thority the  other  way.  For  it  shows  that,  where  there  is  no  gift  but 
by  a  direction  to  transfer  from  and  after  a  given  event,  the  vesting 
would  be  postponed  till  after  that  event  had  happened;  unless,  from 
particular  circumstances,  you  are  enabled  to  collect  a  contrary  in- 
tention. For  otherwise  Lord  Alvanley  would  only  have  had  to  say, 
"These  words  can  have  no  such  effect  as  is  ascribed  to  them.  They 
operate  only  as  a  postponement  of  the  enjoyment."  Here,  interest 
is  not  given  to  children  dying  before  twenty-five.  Children  attaining 
twenty-five  are  to  take  the  whole.  There  is  not  even  a  provision  for 
the  case  of  a  child  dying  under  twenty-five,  leaving  issue.  All  is  to 
go  to  those  who  do  attain  twenty-five.  How  is  it  possible,  therefore, 
that  a  child  can  be  said  to  have  a  vested  interest  before  twenty-five, 
when  it  has  neither  a  right  of  enjoyment,  a  capacity  of  transmission, 
or  a  ground  of  claim,  until  after  it  shall  have  attained  that  age? 
When  the  vesting  is  so  clearly  and  expressly  postponed,  it  is  in  vain  to 
endeavor  to  infer  from  other  expressions,  used  without  any  reference 
to  that  object,  that  the  testator  did  not  conceive  himself  to  have  post- 
poned the  vesting.  That  he  has  unnecessarily  provided  for  survivor- 
ship ;  that  he  has  spoken  of  shares  of  grandchildren  dying  under  twen- 
ty-five, and,  in  the  last  proviso,  given  over  the  moieties  of  the  residue 
only  in  the  event  of  either  of  his  daughters  dying  without  leaving  any 
issue  or  any  children  of  such  issue, — are  all  of  them  circumstances 
that  appear  to  me  not  at  all  to  affect  the  question  of  vesting,  as  none 
of  these  clauses  make  any  new  gift  to  the  grandchildren,  nor  can  they 
alter  the  terms  or  conditions  of  that  which  had  been  already  made. 

Then,  assuming  that  after-born  grandchildren  were  to  be  let  in,  and 
that  the  vesting  was  not  to  take  place  till  twenty-five,  the  consequence 
is,  that  it  might  not  take  place  till  more  than  twenty-one  years  after  a 
life  or  lives  in  being  at  the  death  of  the  testator.  It  was  not  at  all  dis- 
puted that  the  bequests  must  for  that  reason  be  wholly  void,  unless 
the  court  can  distinguish  between  the  children  born  before,  and  those 
born  after,  the  testator's  death.  Upon  what  ground  can  that  distinc- 
tion rest?  Not  upon  the  intention  of  the  testator;  for  we  have  al- 
ready ascertained  that  all  are  included  in  the  description  he  has  given 
of  the  objects  of  his  bounty.  And  all  who  are  included  in  it  were 
equally  capable  of  taking.  It  is  the  period  of  vesting,  and  not  the  de- 
scription of  the  legatees,  that  produces  the  incapacity.  Now,  how  am 
I  to  ascertain  in  which  part  of  the  will  it  is  that  the  testator  has  made 
the  blunder  which  vitiates  his  bequests?  He  supposed  that  he  could 
do  legally  all  that  he  has  done; — that  is,  include  after-born  grandchil- 
dren, and  also  postpone  the  vesting  till  twenty-five.  But,  if  he  had 
been  informed  that  he  could  not  do  both,  can  I  say  that  the  alteration 
he  would  have  made  would  have  been  to  leave  out  the  after-born 


Ch.  4)  LIMITATIONS   TO   CLASSES  527 

grandchildren,  rather  than  abridge  the  period  of  vesting?  I  should 
think  quite  the  contrary.  It  is  very  unlikely  that  he  should  have  ex- 
cluded one  half  of  the  family  of  his  daughters,  in  order  only  that  the 
other  half  might  be  kept  four  years  longer  out  of  the  enjoyment  of 
what  he  left  them.  It  is  much  more  probable  that  he  would  have  said, 
"I  do  mean  to  include  all  my  grandchildren,  but  as  you  tell  me  that  I 
cannot  do  so,  and  at  the  same  time  postpone  the  vesting  till  twenty- 
five,  I  will  postpone  it  only  till  twenty-one."  If  I  could  at  all  alter  the 
will,  I  should  be  inclined  to  alter  it  in  the  way  in  which  it  seems  to  me 
probable  that  the  testator  himself  would  have  altered  it.  That  altera- 
tion would  at  least  have  an  important  object  to  justify  it ;  for  it  would 
give  validity  to  all  the  bequests  in  the  will.  The  other  alteration 
would  only  give  them  a  partial  effect ;  and  that  too  by  making  a  dis- 
tinction, which  the  testator  himself  never  intended  to  make,  between 
those  who  were  the  equal  objects  of  his  bounty.  In  the  latter  case,  I 
should  be  new-modeling  a  bequest  which,  standing  by  itself,  is  per- 
fectly valid ;  while  I  left  unaltered  that  clause  which  alone  impedes  the 
execution  of  the  testator's  intention  in  favor  of  all  his  grandchildren. 
Perhaps  it  might  have  been  as  well  if  the  courts  had  originally  held 
an  executory  devise  transgressing  the  allowed  limits  to  be  void  only 
for  the  excess,  where  that  excess  could,  as  in  this  case  it  can,  be  clear- 
ly ascertained.  But  the  law  is  otherwise  settled.  In  the  construction 
of  the  Act  of  Parliament  passed  after  the  Thellusson  cause,  I  thought 
myself  at  liberty  to  hold  that  the  trust  of  accumulation  was  void  only 
for  the  excess  beyond  the  period  to  which  the  Act  restrained  it.  And 
the  Lord  Chancellor  afterwards  approved  of  my  decision.  But  there 
the  Act  introduced  a  restriction  on  a  liberty  antecedently  enjoyed, 
and  therefore  it  was  only  to  the  extent  of  the  excess  that  the  prohibi- 
tion was  transgressed.  Whereas  executory  devise  is  itself  an  in- 
fringement on  the  rules  of  the  common  law,  and  is  allowed  only  on 
condition  of  its  not  exceeding  certain  established  limits.  If  the  con- 
dition be  violated,  the  whole  devise  is  held  to  be  void. 

To  induce  the  court  to  hold  the  bequests  in  this  will  to  be  par- 
tiall^L._good,  the  case  has  jbeen  argued  as  if  they  hacLbeen  madeJ:o 
someindividuals  who  are,  and  to  ^omejwhp_are_not,  capable  jjltak^^ 
But  the^^quests  in  question,  are  not  made  to  individuals,  but  to  class- 
esj_jind  what  I  have  to  determine  is,  whether  the  class  can  take.  I 
must  make  a  new  will  for  the  testator,  if  I  split  into  portions  his  gen-^ 
eral  bequest  to  tHF^lass,  and  say, Hiat  because  the  rule  of  law  forbids 
his  intentionfrom  operating  in  favor  of  the  whole  class,  Xw^llj'P.^k^ 
his  bequests,  what  he  never  intended  them  to  be,  viz.  a  series  of  par- 
ticula'r  legacies  to  particular  individuals,  qr"\vhat  he  TiacTas  Tltflejn  Hs  ^ 
colTtempTatjon^  distinct  bequests,  Tn  each  instance,  to  two  different 
classes,  namely,  to  grandchildren  living  at  his  death,  and  to  grand- 
children^boriTaTteFTiis  deatli. 

If  the  present  cas~e~Tvere  an  entirely  new  question,  I  should  doubt 
very  much  whether  this  could  be  done.     But  it  is  a  question  which 


528  RULE   AGAINST  PERPETUITIES  (Part  4 

appears  to  me  to  be  perfectly  settled  by  antecedent  decisions,  and  in 
cases  in  which  there  were  grounds  for  supporting  the  bequests  that 
do  not  here  exist.  In  Jee  v.  Audley.  1  Cox,  324,  there  were  no  after- 
born  children — no  distinction  therefore  to  be  made  between  persons 
capable  and  persons  incapable — (all  were  capable) — no  difficulty,  con- 
sequently, in  adjusting  the  proportions  that  the  capable  children  were 
to  take,  or  in  determining  the  manner,  or  the  period,  of  ascertaining 
those  proportions.  I  am  asked  why  the  existence  of  incapable  chil- 
dren should  prevent  capable  children  from  taking.  But,  in  Jee  v. 
Audley,  the  mere  possibility  that  there  might  have  been  incapable 
children  was  sufficient  to  exclude  those  who  were  capable.  It  is  said, 
the  devise  there  was  future.  Certainly ;  but  only  in  the  same  sense  in 
which  these  bequests  are  future:  that  is,  so  conceived  as  to  let  in 
after-born  children ;  which  was  the  sole  reason  for  its  being  held  to  be 
void.  Unless  my  decision  on  the  first  point  be  erroneous,  the  bequests 
in  this  case  do  equally  include  after-born  children  of  the  testator's 
daughters,  and  are  therefore  equally  void. 

The  case  of  Routledge  v.  Dorril,  2  Ves.  357,  appears  to  me  to  be 
also  an  express  authority  on  the  point  now  in  question.  And  I  think 
that  the  circumstance,  that  there  the  will  was  an  execution  of  a  pow- 
er, was  rather  favorable  than  adverse  to  the  courts  making  a  dis- 
tinction between  the  two  sets  of  grandchildren.  For  it  might  have 
been  contended  that  after-born  grandchildren  were  not  proper  ob- 
jects of  the  power, — that  the  appointment  was  therefore  void  quoad 
them,  but  good  quoad  those  who  were  capable  of  taking  under  the 
power.  Whatever  might  be  the  value  of  that  argument,  it  would 
have  no  application  to  the  question  now  before  the  court.  For  in  this 
case  it  could  not  be  said  that  any  one  grandchild  was,  more  or  less 
than  another,  the  proper  object  of  the  testator's  spontaneous  bounty; 
and  therefore  we  have  not  the  line,  which  the  power  might  have  fur- 
nished, for  making  a  distinction  between  the  two  classes  of  grand- 
children. If,  even  in  such  a  case,  the  distinction  could  not  be  made,  a 
fortiori  is  it  impossible  to  make  it  in  this. 

The  case  of  Blandford  v.  Thackerell,  2  Ves,  238,  has  no  application 
to  the  present  question.  There  was  no  vice  or  excess  in  the  testator's 
bequest,  which  the  court  had  to  cure  by  excluding  some  of  the  objects 
in  whose  favor  it  was  conceived.  It  was  a  sort  of  charitable  inten- 
tion for  the  benefit  of  children  and  grandchildren  of  relations  of  a 
specified  description.  As  it  was  not  a  future  bequest,  or  by  way  of 
remainder,  it  would,  according  to  the  established  rules  of  construc- 
tion, extend  only  to  children  and  grandchildren  living  at  the  testator's 
death.  Lord  Rosslyn  thought  fit,  (probably  because  it  was  in  the  na- 
ture of  a  charity,)  to  extend  it  to  all  the  objects  to  whom  the  testator 
might  legally  have  extended  it — that  is,  children  or  grandchildren 
born  during  the  lives  of  the  different  relations.  Whether  that  was, 
or  was  not,  a  correct  execution  of  the  particular  will,  the  case  has  na 
bearing  at  all  on  the  point  now  under  discussion.    The  case  of  Wil- 


Ch.  4)  LIMITATIONS  TO   CLASSES*  529 

kinson  v.  Adam,  1  V.  &  B.  422,  was  referred  to,  as  furnishing  an  in- 
stance of  a  distinction  made  between  those  who  were,  and  those  who 
were  not,  capable  of  taking  vmder  the  same  devise.  That  was  merely 
a  question  of  description,  who  were  or  were  not  included  under  the 
denomination  of  children.  If  it  could  be  shown  that  after-born 
grandchildren  are  not  entitled  to  the  appellation  of  grandchildren, 
there  would  be  a  short  end  of  the  present  case.  On  the  whole,  my 
opinion  is,  that  all  the  bequests  to  the  grandchildren  as  classes,  (for 
I  have  nothing  to  do  with  the  bequests  to  individuals,)  are  wholly 
void. 

A  question  has  been  made,  whether  the  particular  bequests  thus  de- 
clared  void  do  or  do  not  fall  into  the  resj^due.  I  have  always  under- 
stood  tha"t7with  regard  to  personal  estate,  everything  which  is  ill  giv- 
en by  the  will  does  fall  into  the  residue ;  and  it  must  be  a  very  peculiar 
case  indeed,  in  which  there  can  at  once  be  a  residuary  clause  and  a 
partial  intestacy,  unless  some  part  of  the  residue  itself  be  ill  given. 
It  is  immaterial  how  it  happens  that  any  part  of  the  property  is  un- 
disposed of, — whether  by  the  death  of  a  legatee,  or  by  the  remoteness, 
and  consequent  illegality,  of  the  bequest.  Either  way  it  is  residue, — 
i.  e.  something  upon  which  no  other  disposition  of  the  will  effectually 
operates.  It  may  in  words  have  been  before  given;  but  if  not  effectu- 
ally given,  it  is,  legally  speaking,  undisposed  of,  and  consequently  in- 
cluded in  the  denomination  of  residue. 

A  testator  supposes  that  each  part  of  his  will  is  to  take  effect,  and 
consequently  cannot  be  said  to  have  any  intention  to  include  in  his 
residue  anything  that  he  has  before  given.  I  do  not  see,  therefore, 
how  such  arguments  as  might  be  used  in  cases  of  the  description  of 
Roe  V.  Avis,  4  T.  R.  605 ;  Church  v.  Mundy,  12  Ves.  426;  and  Welby 
V.  Welby,  2  V.  &  B.  187,  can  be  here  applicable.  The  limitations  of  a 
particular  bequest,  and  those  of  the  residue,  may  be  quite  incongru- 
ous ;  for  the  testator  supposes  that  each  is  to  have  its  separate  effect. 
But  what  eventually  turns  out  to  be  undisposed  of  will  not  the  less 
constitute  residue,  because  some  of  the  provisions  contained  in  the 
residuary  clause  may  be  inappHcable  to  a  case  of  which  the  testator 
did  not  foresee  the  existence. 

I  am  of  opinion  that,  in  so  far  as  any  of  thejpjirticular  bequests  are 
ill  disposed  of,  they  fall  into  the  residue.  But  then,  according  to 
what  I  have  already  determinedTThere  is  no  good  disposition  of  the 
residue  itself  after  the  death  of  the  tenants  for  life,  excepting  in  so 
far  as  the  ultimate  proviso  may  operate  upon  the  subject  of  it.  As  to 
that  proviso,  one  half  of  the  residue  is  placed  out  of  the  reach  of  its 
operation,  by  Mrs.  ]\Iitford's  having  left  children  at  her  death.  The 
consequence  is,  that,  subject  to  Mr.  Mitford's  life  interest,  it  belongs 
to  the  testator's  next  of  kin.  The  fate  of  the  other  half  rests  in  con- 
tingency. If  j\Irs.  Robinson  should  die  without  leaving  issue,  it  is 
well  given  over  to  the  children  of  Mrs.  Mitford,  there  being  nothing 
4  Kales  Pkop. — 34 


530  RULE   AGAINST  PERPETUITIES  (Part  4 

in  this  bequest  to  make  it  too  remote;  and  it  being  evident  that  the 
testator  used  the  words  "surviving  sister"  in  the  same  sense  as  other 
sister.  But  if  Mrs.  Robinson  shall  leave  issue,  this  half  also  will,  at 
her  death,  be  undisposed  of,  and  divisible  among  the  next  of  kin. 

The  question  as  to  the  widow's  right  to  share  in  the  property  which 
turns  out  to  be  undisposed  of,  I  take  to  be  settled  bv  the  case  of  Pick- 
ering V.  Lord  Stanford,  2  Ves.  272,  581 ;  3  Ves.  332,  492;  4  B.  C.  C. 
214.^ 


PICKEN  V.  MATTHEWS. 
(Court  of  Chancery,  1S7S.     10  Ch.  Div.  264.) 

Francis  Hoofif,  by  his  will,  gave  his  property,  real  and  personal,  to 
trustees  on  trust  to  pay  certain  legacies  and  annuities,  and  continued 
as  follows:  "Subject  as  aforesaid,  I  direct  my  trustees  to  stand  pos- 
sessed of  my  said  trust  estate,  upon  trust  for  such  of  the  children  of 
my  daughter  Helen  by  her  first  husband  (but  not  her~cEiI3reinDy'  her 
present  husband),  and  the  children  ot  my"daughter  Charlotte,  who  be- 
ing sons  shall  live  to  attain  the  age  ortwehty-frve  j^earj^or  being  daugh~ 
ter?''HraIl~attaIn~niat  age  or  "previously  marry,  whichever  shall  first 
happen ;  and  I  expressly  direct  that  all  such  grandchildren  shall  par- 
ticipate equally  without  regard  to  the  number  of  each  family."  And 
the  testator  empowered  his  trustees  to  maintain  the  children  out  of 
their  expectant  shares  until  they  should  respectively  acquire  vested 
interests  in  the  trust  estate. 

The  testator  died  in  December,  1865.  The  testator's  daughter  Helen 
had  at  the  date  of  the  testator's  death  three  children  by  her  first  hus- 
band,  ot  whomthe  plainfiff  TVad  attained  tlie  age  M"twenty-fiyF  aT tKe 
date  of  the  testator's  death.  Charlotte  had  two  children  who  were  in^ 
faints';    '    -  - 

'Malixs,  V.  C.  I  have  very  carefully  considered  the  cases  which 
have  been  cited ;  and  the  conclusion  to  which  I  have  come  will  have 
the  advantage,  that  it  will,  I  think,  carry  into  effect  the  intention  of 
the  testator. 

If  the  two  daughters  of  the  testator  had  had  no  children  living  at 
his  death,  the  gift  would  have  been  void  for  remoteness;  because  it 
would  not  be  certain  that  the  property  would  vest  within  a  life  or  lives 
in  being  and  twenty-one  years  after.  But  this  is  a  gift  to  living  grand- 
children. The  testator  evidently  knew  that  his  grandchildren  were  in 
existence,  and  I  must  attribute  to  him  knowledge  of  their  ages,  knowl- 
edge therefore  that  before  his  death  the  plaintiff  had  attained  the  age 
of  twenty-five  years.  Now,  the  rules  of  law  applicable  to  this  case 
are,  first,  that  a_gift  to  a  class  not  preceded  by  any  life,  estate  Js  a  gift 
to  such  of  the  class  as"~are  Irving  at  the  death  of  the  testator.     The 

1  See,  also,  Porter  v.  Fox,  6  Sim.  485  (1834). 


Ch.  4)  LIMITATIONS   TO   CLASSES  531 

case  of  Singleton  v.  Gilbert,  1  Bro.  C.  C.  542,  n. ;  1  Cox,  68,  proceed- 
ed on  that  footing.  There,  there  was  a  demise  of  real  estate  (sub- 
ject to  a  term  to  secure  annuities)  to  all  the  children  of  A.,  and  the 
heirs  of  their  bodies.  A.  had  two  children  at  the  death  of  the  tes- 
tatrix, and  one  born  afterwards,  but  before  the  death  of  the  annuitants. 
It  was  held  that  the  after-born  child  could  not  take,  though  if  there 
had  been  a  precedent  life  interest,  that  would  have  been  enough  to 
postpone  the  period  of  vesting.  Lord  Chancellor  Thurlow,  in  giving 
judgment,  says,  "The  general  principle  is  that,  where  the  legacy  is 
given  to  all  the  children,  it  shall  not  extend  to  after-born  children ;  but 
where  it  is  given  with  any  suspension  of  the  time  so  as  to  make  the 
gift  take  place  by  a  fair,  or  even  by  a  strained  construction  (for  so 
far  some  of  the  cases  go)  at  a  future  period,  then  such  children  shall 
take  as  are  living  at  that  period.  But  in  this  case  I  can  see  no  cir- 
cumstance to  take  it  out  of  the  general  rule."  That  is  a  decision  that 
the  devise  extends  only  to  those  children  who  are  living  at  the  death 
of  the  testator.     TtTsa  rule  of  convenience. 

'i'he  second  rule  is,  that  where  you  have  a  gift  for  such  ofjhe  chil- 
dren of  A.  as  shall  attain  a  specified  age,  only  those  who  are  in  esse 
when  the  first  of  the  class  attains  the  specified  age  can  take.  All  after- 
bo  nTTKiHrHr'are'excIuded^  Tliis  also  is  a  rule  of  convenience^  It 
was  laid  down  in  the  case  of  Andrews  v.  Partington,  3  Bro.  C.  C.  401, 
and  has  been  followed  in  numerous  cases,  of  v/hich  Hoste  v.  Pratt, 
3  Ves.  730,  and  a  case  before  me  of  Gimblet  v.  Purton,  Law  Rep.  12 
Eq.  427,  are  examples.  In  the  latter  case  I  proceeded  on  the  prin- 
ciple that  only  those  who  were  alive  when  the  first  of  the  class  at- 
tained twenty-one  could  take.  The  maximum  number  to  take  was 
then  ascertained.  Vice-Chancellor  Wigram,  in  giving  judgment  in 
the  case  of  Williams  v.  Teale,  6  Hare,  239,  makes  this  observation: 
"If  a  testator  should  give  his  property  to  A.  for  life,  with  remainder 
to  such  of  A.'s  children  as  should  attain  twenty-five  years  of  age,  and 
the  testator  should  die,  living  A.,  there  is  no  doubt  but  that  the  limita- 
tions over  to  the  children  of  A.  would  be  void :  Leake  v.  Robinson, 
2  Mer.  363 ;  but  if  in  that  case  A.  had  died,  living  the  testator,  and 
at  the  death  of  the  testator  all  the  children  of  A.  had  attained  twenty- 
five,  the  class  would  be  then  ascertained,  and  I  cannot  think  it  pos- 
sible that  any  court  of  justice  would  exclude  them  from  the  benefit 
of  the  bequest,  on  the  ground  only  that  if  A.  had  survived  the  tes- 
tator the  legacy  would  have  been  void,  because  the  class  in  that  state 
of  things  could  not  have  been  ascertained."  So  that  he  adopts  the 
principle  that  when  once  the  class  to  take  has  been  ascertained  there 
is  no  objection  to  postponing  the  vesting  to  a  future  period. 

Upon  the  authority  of  these  cases  I  come  to  the  conclusion  that  the 
persons  who  can  take  under  this  limitation  are  those  who  wereliv^ 
"ing  at  the  deatn  of  the  tegtatof:  Vmef^ Francis,  2  Bro.  C.  C.  658,  a 
leading  authority  on  the  subject,  shows  that  the  same  principle  pre- 
vails whether  the  parent  of  the  children  who  are  to  take  be  alive  or 


532  RULE  AGAINST  PERPETUITIES  (Part  4 

dead  at  the  date  of  the  will.  I  have  already  mentioned  Singleton  v. 
Gilbert  and  Viner  v.  Francis.  These  cases,  as  well  as  Doe  v.  Sheffield, 
13  East,  526,  and  Doe  v.  Over,  1  Taunt.  263,  all  show  that  a  gift  to 
a  class  only  embraces  those  of  the  class  who  are  living  at  the  death 
of  the  testator. 

Here  there  is  a  gift  to  such  of  a  class  as  shall  attain  twenty-five. 
The  class_jyagZascertnined_aLthe__death  oT~the  testatof~l)ecause  one 
of  them  had  then  attained  twenty- five.     The  two  infant  children  oT 
CharloTEe"Heale  who  were  alive  at  the  death  of  the  testator  are  en- 
titled to  take,  provided  they  attain  the  age  of  twenty-five  years. 

The  case  mainly  relied  on  by  the  other  side  was  Griffith  v.  Blunt, 
4  Beav.  248.  There  Lord  Langdale,  in  giving  judgment,  said  that 
the  will  was  really  free  from  ambiguity;  the  vesting  was  not  to  take 
effect  till  twenty-five,  and  therefore  the  gift  was  too  remote.  But  the 
real  question  was.  In  whom  was  the  property  to  vest?  Was  the  class 
to  take  ascertained  at  the  death  of  the  testator? 

Here  I  hold  that  there  is  a  valid  gift  because  one  of  the  children 
of  Helen  (by  her  former  husband)  had  attained  twenty-five  at  the  death 
of  the  testator;  the  maximum  number  to  take  was,  therefore,  then 
ascertained,  and  the  gift  in  question  is  not  void  for  remoteness.^ 

2  Suppose  the  limitations  be  upon  trust  to  A.  for  life,  then  upon  trust  for 
such  children  of  A.  as  should  attain  the  age  of  25,  and  suppose  one  had 
attained  that  age  at  the  testator's  death.  See  Gray,  Rule  Against  Perpetui- 
ties (2d  and  3d  Ed.)  §  20.5a;  Belfield  v.  Booth,  63  Conn.  299,  27  AtL  5S5; 
Pitzel  V.  Schneider,  216  111.  87,  74  N.  E.  779. 

Suppose  an  immediate  vested  bequest  to  the  grandchildren  of  A.,  a  living 
person,  to  be  paid  them  at  25,  and  suppose  A.  has  one  grandchild  in  esse 
at  the  testator's  death,  who  is  three  years  old.  Is  there  a  valid  gift  to  that' 
grandchild?  See  19  H.  L.  R.  59S ;  Gray,  Rule  Against  Perpetuities  {2d  &  3d 
Eds.)  §  121b  (where,  however,  Mr.  Gray  inadvertently  states  the  case  con- 
sidered, erroneously,  as  a  gift  "to  the  grandchildren  of  the  testator"  and  "to 
the  children  of  A."). 

In  re  IMoseley's  Trusts,  L.  R.  11  Eq.  499,  11  Ch.  Div.  555,  5  App.  Cas.  714: 
The  testator,  after  giving  a  legacy  of  £3000  to  trustees  upon  trust  to  pay  the 
interest  to  his  daughter,  Mary  Jordan,  for  her  life  for  her  separate  use,  pro- 
vided as  follows:  'And  from  the  decease  of  my  said  daughter  my  will  is,  that 
the  sum  of  £3000,  the  securities  for  the  same,  aud  the  produce  thereof,  shall 
be  in  trust  for  all  the  children  of  my  said  daughter  who  shall  attain  the  age 
of  twenty-one  years,  and  the  lawful  issue  of  such  of  them  as  shall  die  luider 
that  age  leaving  lawful  issue  at  his,  her,  or  their  decease  or  respective  de- 
ceases, which  issue  shall  afterwards  attain  the  age  of  twenty-one  years,  or 
die  under  that  age  leaving  issue  living  at  his,  her,  or  their  decease  or  deceases 
respectively,  as  tenants  in  common  if  more  than  one,  but  such  issue  to  take 
only  the  share  or  shares  which  his,  her,  or  their  parent  or  parents  respec- 
tively would  have  taken  if  living.'  None  of  the  children  of  Mary  Jordan 
died  under  twenty-one  leaving  issue,  but  some  died  under  age  without  leaving 
issue.  Five  attained  twenty-one,  of  whom  two  died  in  their  mother's  lifetime, 
and  the  remaining  three  survived  her.  Held,  the  gift  after  the  death  of 
Mary  Jordan  failed  for  remoteness. 


Ch.  5)  LIMITATIONS  AND   INDEPENDENT   GIFTS  533 


CHAPTER  V 

SEPARABLE  LIMITATIONS,  INDEPENDENT  GIFTS.  AND 
LIMITATIONS  TO  A  SERIES 


LONGHEAD  d.  HOPKINS  v.  PHELPS. 
(Court  of  King's  Bench,  1771.    2  W.  Bl.  704.) 

Ejectment  and  special  case.  30th  and  31st  August,  1706,  John 
Phelps,  in  consideration  of  an  intended  marriage  with  Mary  Moore, 
conveyed  the  premises  in  question  to  the  use  of  himself  and  his  heirs 
till  the  marriage.  And  from  the  marriage  to  trustees  for  forty  years, 
on  trusts  which  never  took  efifect ;  remainder  to  John  Phelps  for  ninety- 
nine  years,  if  he  so  long  lived ;  remainder  to  trustees  for  the  life  of 
John  Phelps,  to  preserve  contingent  remainders ;  remainder  in  case 
Mary  Moore  should  survive  John  Phelps,  to  trustees  for  fifty  years,  on 
trusts  which  never  took  effect;  remainder  to  Mary  Moore  for  life  for 
her  jointure ;  remainder  to  trustees  for  1000  years  on  trusts  after-men- 
tioned; remainder  to  the  first  and  other  sons  of  John  Phelps  on  said 
Mary  begotten  successively  in  tail  male ;  remainder  to  the  right  heirs 
of  John  Phelps.  The  trust  of  the  1000  years'  term  was  declared,  that, 
"in  case  the  said  John  Phelps  should  happen  to  die  without  issue  male 
of  his  body,  on  the  body  of  the  said  Mary  begotten,  or  if  all  the  issue 
male  oetween  them  shall  happen  to  die  without  issue,  and  there 
should  be  issue  female  of  the  marriage,  which  should  arrive  respec- 
tively to  the  age  or  ages  of  eighteen  years,  or  be  married :  Then, 
from  and  atter  the  death  of  the  survivor  of  John  Phelps  and  Mary 
M oore  without  issue  male,  or  in  case  at  the  death  of  the  survivor  there 
shall  be  issue  male,  then  from  and  after  the  death  of  such  issue  male 
without  issue,  the  trustees  should  raise  f5U0  for  one  daughter,  £1000 
for  tU'O  ^  and,'m  case  of  thre6  Of  tlior^,  snouid  assign  the  \yliole  term 
to  tneir  use ;  with  a  clause  of  maintenance  till  eighteen  or  marriage." 
There  was  issue  of  this  marriage  one  son^  Richard,  and  four  daughters, 
who-  all  lived  to  eighteen,  and  were  married :  and  they,  or  their  rep- 
resentatives,  are  the  now  defendairts.  1/31,  John  Phelps  died.  1744, 
Richard  Phelps,  the  son,  died  without  issue ;  but  devised  to  his'wifeT 
Ma^Y,  TSvhb  afterwards  married  Thomas  Hopkins,  "Hie^Iessor  of  the 
plaintiff),  inter  alia  the  premises  in  question.  1760,  Mary,  the  mother, 
died,  and  the  four  daughters  entered,  against  whoni~tliis  ejectment  is 
brought. 

Glyn,  Serjeant,  for  the  plaintiff,  argued,  that  the  trusts  of  the  term 
were  void,  being  on  too  remote  a  contingency, — the  dying  of  the  issue 
male  of  the  marriage  without  issue  generally. 


53-4  RULE   AGAINST  PERPETUITIES  (Part  4 

But  THE  Court,  without  hearing  counsel  for  the  defendants,  were 
clear  that  the  first  part  of  the  contingency  was  good,  viz.,  "in  case 
John  and  Mary  died  without  leaving  issue  maleT"  And  as  that  hap- 
pened in  fact  to  be  the  case,  they  would  not  enter  into  the  consideration 
how  far  the  other  branch  of  the  contingency  might  have  been  support- 
ed,'  xvhjcli-rnnld  ^"Ijr  ''ome  in  question,  m  case  Richard  had  surviv"ea 
both  his  parents.  So  ordered  the 
'ostea  to  the  defendants.^ 


PROCTOR  v.  BISHOP  OF  BATH  AND  WELLS. 

(Court  of  Common  Pleas,  1794.     2  H.  Bl.  358.) 

In  this  quare  impedit.  brought  to  recover  the  presentation  to  the 
church  of  the  rectory  of  West  Coker  in  Somersf^''^^'"'^'^;  ^^^^  riprlaratinn 
stated,  that  one  William  Ruddock  was  seised  in  fee  of  the  advowson, 
and  presented,  that  on  his  death  it  descended  to  his  two  nieces  Jane 
and  Mary  Hall,  that  Jane  Hall  intermarried  with  Nathaniel  Webb, 
and  Mary  with  Thomas  Proctor :  that  Nathaniel  Webb  died,  his  wife 
surviving  him,  whereby  the  said  Jane  in  her  own  right,  and  Thomas 
Proctor  and  Mary  in  her  right  were  seised,  that  the  church  then  be- 
came vacant  by  the  death  of  the  incumbent,  whereby  the  said  Jane 
Webb  and  Thomas  Proctor  in  right  of  the  said  Mary,  presented  their 
clerk ;  that  Jane  Webb  died,  upon  whose  death  her  whole  share  of 
the  advowson  descended  to  her  son  Nathaniel  Webb,  who  thereupon 
became  seised  in  fee  in  coparcenary,  with  Thomas  Proctor  and  Mary 
his  wife ;  that  Thomas  Proctor  died,  his  wife  surviving  him,  whereby 
the  said  Nathaniel  Webb  the  son,  and  Mary  Proctor  became  seised. 
There  were  then  set  forth  several  presentations  on  vacancies  by 
Nathaniel  Webb  and  Mary  Proctor.  The  death  of  the  said  Nathaniel 
Webb  was  then  stated,  whose  share  descended  to  his  son  Nathaniel 
Webb,  who  became  seised  in  coparcenary  with  Mary  Proctor:  that 
Mary  Proctor  died,  upon  whose  death  her  share  descended  to  her 
grandson  Thomas  Proctor,  who  became  seised,  together  with  the 
last-mentioned  Nathaniel  Webb :  that  the  church  again  became  va- 
cant, upon  which,  they  not  agreeing  upon  any  person  to  be  presented 
by  them  jointly,  the  said  Nathaniel  Webb  presented  the  said  Thomas 
Proctor,  as  in  the  first  turn  of  the  said  Jane  Webb,  the  elder  sister  of 
the  said  Mary  Proctor:  that  he  died  and  his  share  descended  to  Eliza- 
beth Proctor,  his  sister,  the  present  plaintiff,  who  was  entitled  to 
represent  in  the  first  turn  of  the  said  Mary  Proctor,  the  younger  sis- 
ter of  the  said  Jane  Webb,  yet,  &c. 

The  bishop  pleaded  the  usual  plea  as  ordinary ;  and  the  other  de- 
fendants— That  true  it  was  that  the  said  Nathaniel  Webb  the  grand- 
son of  Jane  Webb  and  the  said  Mary  Proctor  were  seised  of  the 

1  See  Doe  d.  Herbert  v.  Selby,  2  B.  &  C.  92G.  » 


Ch.  5)  LIMITATIONS   AND   INDEPENDENT   GIFTS  535 

advowson  in  coparcenary,  and  that  Mary  Proctor  died  so  seised,  and 
that  the  said  Xathaniel  \\^ebb  presented  as  in  the  first  turn  of  the  said 
Jane  Webb,  &c. :  but  the  said  defendants  further  said,  that  the  said 
Mary  Proctor  being  so  seigp'ij  piari^  T-i^r  l^ct  ^vill  anri  tp-^i-nmont,  and 
gave  and  devised  unto  the  first  or  ntliej-  ^^nr,  nf  lipr  grand.'ion.  the  said 
last-mentioned  Thomas  Proctor,  that  should  be  bred  a  clergyman  and 
be  in  holy  orders,  and  to  his  heirs  and  assigns  all  ner  right  of  pre!?rn- 
tation  to  the  said  rectory,  &c. :  but  in  case  her  said  grandson  the  saTd^ 
last-mentioned  1  homas  i^roctor  shoul_d-,hava  no -sucli^son,  then  she 
gave" and  devised  the  said  right  of  presentation  unto  her  grandson  the 
said  Thomas  Moore,  his  heirs  and  assio-ii,s  jorever  :~tHat  afterwards 
the  said  Mary  Proctor  died  so  seised,  leaving  the  said  last-mentioned 
Thomas  Proctor  and  Thomas  Moore  her  surviving,  and  that  after- 
wards the  said  Thomas  Proctor  died  without  having  ever  had  any 
son ;  whereby  and  by  virtue  of  the  said  last  will  and  testament  of  the 
said  Mary  Proctor,  the  said  Thomas  ■\Ioore  became  seised  of  all  the 
share  of  the  said  Mary  Proctor  of  and  in  the  said  advowson,  &c., 
wherefore  it  belonged  to  the  said  Thomas  ]\Ioore  to  present.  &c.  as  in 
the  first  turn  of  the  said  Mary  Proctor  the  younger  son  of  the  said 
Jane  Webb,  &c. 

To  this  plea  there  was  a  general  demurrer,  which  was  twice  argued ; 
the  first  time  by  Bond,  Serjt.,  for  the  plaintiff,  and  Heywood,  Serjt., 
for  the  defendants ;  and  a  second  time  by  Adair,  Serjt.,  for  the  plain- 
tiff, and  Le  Blanc,  Serjt.,  for  the  defendants. 

Ths  Court  (absent  Mr.  Justice  Buller)  were  clearly  of  opinion 
that  the  first  devise  to  th€  son  of  Thomas  Proctor  w-as  void,  from  the 
u ncertainty  as  to  the  time  when  such  son,  if  he  had  anv.  might  take 
orclers :  and  that  the  devise  over  to  }^Ioore.  as  it  depended  on  the 
same  event,  was  also  void ;  for  the  words  of  fl?e  will  would  not  admit 
of  the  contingencv  being  divided,  as  was  the  case  in  Lon^^head  v. 
Phelps,  2  Black.  704 ;  and  there  was  no  ins|;^nce  in  whirh  a  1j]-[-|ii-pHnn 
a fffer  a  prior  devise,  which  was  void  from  the  contingencv  ])ein<j  ton 
remote,  had  been  let  in  to  take  effect,  but  the  contrarv  was  express^v 
decided  in  the  House  of  T.nrds  in  the  case  of  The  Earl  of  Chatham  v. 
Tothill,  6  Brown  Cas.  in  Pari.  451,  in  which  the  judges  founded  their 
opinion  on  Butterfield  v.  Butterfield,  1  Vezey,  134.  Consequently  the 
heir-at-law  of  the  testatrix  was  entitled. 

Judgment  for  the  plaintiff.- 

2  Per  Jessel,  M.  R..  in  Miles  v.  Harford,  12  Ch.  D.  GDI,  702-70.5:  "As  I 
understand  the  rule  of  law  it  is  a  question  of  expression.  If  you  have  an 
expression  giving  over  an  estate  on  one  event,  and  that  event  will  include 
another  event  which  itself  would  be  within  the  limit  of  peri>etuities,  or,  as 
I  say,  the  rule  against  perpetuities,  you  cannot  split  the  expression  so  as 
to  say  if  the  event  occurs  which  is  within  the  limit  the  estate  shall  go 
over,  although,  if  that  event  does  not  occur,  the  gift  over  is  void  for  re- 
moteness. In  other  words,  you  are  bound  to  take  the  expression  as  you  find 
it,  and,  if,  giving  the  proper  interpretation  to  that  expression,  the  event  may 
transgress  the  limit,  then  the  gift  over  is  void. 

"What  I  have  said  is  hardly  intelligible  without  an  illustration:    On  a 


536  RULE   AGAINST  PERPETUITIES  (Part  4 


CHALLIS  V.  DOE  d.  EVERS.' 

(Exchequer  Chamber   and   House  of   Lords,   1850,   1859.     18   Q.   B.   231;    7 

H.  L.  Cas.  531.) 

AldERSON,  B.*  This  is  a  writ  of  error  upon  the  judgment  of  the 
Court  of  Queen's  Bench  upon  a  special  verdict. 

This  was  an  action  of  ejectment,  brought  to  recover  one-twelfth 
part  of  certain  property  devised  by  the  will  of  one  Thomas  DoUey  to 

gift  to  A.  for  life  with  a  gift  over  in  case  he  shall  have  no  sou  who  shall  at- 
tain the  age  of  twentj'-five  years,  the  gift  over  is  void  for  remoteness.  On  a 
gift  to  A.  for  life,  with  a  gift  over  if  he  shall  have  no  sou  who  shall  tiike 
pi'iest^s  orders  in  the  Church  of  England,  the  gift  over  is  void  for  remote- 
ness ;  but  a  gift  superadded,  'or  if  he  shall  have  no  son,'  is  valid,  and  takes 
effect  if~he  has  no  son ;  yet  both  these  events  are  Included  in  the  other 
event,  because  a  man  who  has  no  son  certainly  never  has  a  sou  who  attaius 
twenty-five  or  takes  priest's  orders  in  the  Church  of  England,  stUl  the  al- 
ternative event  will  take  effect  because  that  is  the  expression. 

"The  testator,  in  addition  to  his  expression  of  a  gift  over,  has  also  ex- 
pressed another  gift  over  on  another  event,  although  included  in  the  first 
event,  but  the  same  judges  who  have  held  that  the  second  gift  over  will 
take  effect  where  it  is  expressed  have  held  that  it  will  not  take  effect  if 
it  is  not  expressed,  that  is,  if  it  is  really  a  gift  over  on  the  death  before 
attaining  twenty-five  or  taking  priest's  orders,  although,  of  course,  it  must 
include  the  case  of  there  being  no  son.  That  is  what  they  mean  by  split- 
ting, they  will  not  split  the  expression  by  dividing  the  two  events,  but  when 
they  find  two  expressions  they  give  effect  to  l)oth  of  them  as  if  you  had 
struck  the  other  out  of  the  will.  That  shows  it  is  really  a  question  of  words 
and  not  an  ascertainment  of  a  general  intent,  because  there  is  no  doubt  that 
the  man  who  says  that  the  estate  is  to  go  over  if  A.  has  no  son  who  attains 
twenty-five,  means  it  to  go  over  if  he  has  no  son  at  all,  it  is,  as  I  said  be- 
fore, because  he  has  not  expressed  the  events  separately,  and  for  no  other 
reason.    That  is  my  view  of  the  authorities.    This  is  a  question  of  authorities. 

"Now,  we  come  to  the  case  we  have  before  us.  The  estate  is  to  go  over 
if  any  of  his  sons  get  another  estate,  that  is.  if  any  one  of  his  sons  who 
has  got  possession  of  this  estate  gets  one  of  the  other  estates,  or  if  any  of 
the  issue  male  of  the  body  of  any  of  the  sons  gets  the  estate.  Here  you 
have  two  events  expressed.  He  might  have  said,  if  any  of  the  issue  male 
of  my  body  get  the  estate,  which  would  have  included  both  events,  and 
then  you  could  not  have  split  it  up,  but  he  has  not  said  so.  He  has  divided 
it  for  some  reason  or  other,  probably  a  conveyancer's  one,  because  it  is  an 
alteration  of  a  conveyancer's  form.  The  words  'sons'  and  'issue  male'  are 
Iwth  added,  but  he  has  divided  that  and  suggests  two  events,  then  and  in 
any  of  the  events  'and  so  often  as  the  same  shall  happen  the  uses  hereby 
limited  of  and  concerning  my  freehold  hereditaments  to  or  in  trust  for  any 
such  younger  son  or  whose  issue  male  shall  for  the  time  being  become  en- 
titled as  aforesaid,  and  to  or  in  trust  for  his  issue  male  shall  absolutely 
cease.'  That  is,  there  is  a  cesser  of  the  estate  either  of  the  younger  son  or 
the  issue  male  of  the  younger  son.  Why  should  I  alter  the  words?  Why 
should  I  say  that  the  event  of  the  younger  son  properly  expressed  succeed- 
ing to  the  estate  being  in  due  time  is  to  be  void  for  remoteness?     The  rea- 

8  An  appeal  from  this  decree,  on  behalf  of  the  Crown,  was  heard  before 
Lord  Lyndhurst,  C.  His  Lordship  directed  a  case  to  be  made  for  the  opinion 
of  the  Court  of  Common  Pleas  upon  tlie  will.  But,  before  the  case  was  ar- 
gued, the  suit  was  compromised. — Rep. 

4  The  judges  who  sat  in  the  Exchequer  Chamber  were  Maule,  Williams, 
and  Talfourd,  JJ.,  and  I'latt,  B.  The  case  in  the  Queen's  Bench  is  reported 
18  Q.  B.  224. 


Ch.  5)  LIMITATIONS   AND   IXDEPENDENT   GIFTS  537 

his  daughter  EHzabeth.  The  lessors  of  the  plaintiff  were  !Mary  Ann 
Evers  and  her  husband,  she  being  one  of  two  children  of  John  Dolley, 
the  son  of  the  testator. 

The  testator  had  four  children,  John,  Sarah,  Ann,  and  Elizabeth: 
and,  by  his  will,  dated  12th  June,  1819,  he  gave  the  property  (the  one- 
twelfth  of  which  is  now  in  question)  to  trustees  during  the  life  of  his 
daughter  Elizabeth,  in  trust  for  her  separate  use,  and,  aitjer  Jier  de- 
cease, he  gave  Ifie  same  to  such  children  as  she  might  Have,  if  a  son 
or  sons,  who  should  live  to  the  age  of  twenty-three  years,  and,  if  a 
daughter  or  daughters,  who  should  live  to  the  age  of  twenty-one  years, 
their  heirs  ancfassigns,  as  tenants  in  common.  He  then  provided  for 
the  disposition  ot  tlie  property  in  the  event  of  one  or  more  of  the  chil- 
dren of  Elizabeth  dying,  leaving  others  or  another  surviving.  He 
then  proceeded  thus :  "In  case  all  the  children  of  my  said  daughter 
Elizabeth  Maria  shall  die,  if  a  son  or  sons,  under  the  age  of  twentv- 
three  vears,  or.  if  a  daughter,  under  the  age  of  twenty-one  vears.  or  if 
glip'haQ  nnpp  "  T  crivp  the  Said  property,  &c.  unto  the  said  trustees, 
during  the  respective  lives  of  my  son  John  and  my  daughters  Sarah 
Ward  and  Ann  Dolley,  upon  trust  for  the  use  of  John,  and  thp  c;ppa- 
rate  uses  of  Sarah  and  Ann,  during  their  lives,  in  equal  shares  :  "and, 
u pon  the  decease  of  mv  said  son  and  two  last-named  daughters,  I  give 
the~share  of  such  of  them  so  dying  unto  his  or  her  children,  if  a  son 
or  sons.  Jiving  to  attain  the  age  of  twenty-three  vears.  and,  if  a 
daugTTter  or  daughters,  living  to  the  age  of  twentv-one  vears  his,  her 
andTTieir  heirs,  executors,  administrators  and  assigns  :''  if  more  than 
one,  as  tenants  in  common.  "And"  Ttiie  nart  of  the  dpyi^f^  upon  av1iiY|-[_ 
the  Question  depends),  "in  case  of  the  death  of  mv  said  son  or  either 
of  mv  said  two  "daughters  without  leaving  a  child,  if  a  son,  who  shall 
1  ive  to  attain  the  age  of  twenty-three  years,  or,  if  a  daughter,  who 
shall  live  to  attain  the  age  ot  twentv-one  vears.  1  give  the  part  and 
parfs  such  children  or  child  would  be  entitled  to  as  aforesaid  unto 

son  suggested  to  me  is  this,  it  is  quite  plain  he  means  it  to  go  along  the 
whole  line.     I  agree. 

"So  in  the  case  of  a  man  dying  without  a  son  attaining  twenty-five.  That 
is  not  good  although  he  means  it  to  apply  to  the  case  of  his  having  no  son. 
and  there  is  none.  It  is  not  what  he  means  as  to  the  event,  but  whether 
he  has  expressed  the  event  on  which  the  estate  is  to  cease,  so  as  to  bring 
one  alternative  within  the  limits,  and  if  he  has  chosen  to  say  the  estate 
is  to  cease  first  of  all,  as  he  might  have  said  if  a  younger  son  becomes  a 
peer  or  attains  the  age  of  fifty,  or  any  other  event  within  the  limits,  or  any 
of  the  issue  male  of  my  younger  sons  shall  become  a  peer,  one  gift  over 
might  be  valid,  he  might  have  said  if  any  of  my  issue  male  shall  become  a 
peer,  or  if  the  issue  male  of  my  younger  son  become  a  peer  thereupon  the 
e.state  shall  go  over,  that  would  have  been  different,  but  I  think  I  have  no 
right  to  alter  the  expression.  The  law  is  purely  technical.  The  expressions 
are  there,  and  using  them  gives  effect  to  the  real  intention.  Why  should  I 
go  out  of  my  way  to  extend  technical  law  to  a  case  to  which  it  has  not 
hitherto  been  extended?  It  seems  to  me  that  I  ought  to  read  the  expres- 
sions as  I  find  them.  The  event  which  is  expressed  has  happened.  It  is 
within  legal  limits,  and  I  think  the  estate  should  go  over." 


538  RULE   AGAINST   PERPETUITIES  (Part  4 

the  child  or  children  of  my  said  son  and  two  daughters  having  issue, 
if  a  son  or  sons,  living  to  the  age  of  twenty-three  years7~and,  It  a 
d a ughter  or  ciaugnters,  living  to  attain  the  age  of  twentv-one  years:" 
if  tw^o  ot  my  said  last-named  children  have  such  children  or  child,  lo^ 
them,  his  or  her  heirs,  executors,  administrators  and  assigns,  as  tak- 
ing in  equal  shares  from  his  or  her  father  or  mother,  his,  her  and  their 
heirs,  executors,  administrators  and  assigns." 

Elizabeth  died  in  August  1838,  having  been  married,  but  never  hav- 
ing had  a  child.  Upon  her  death,  her  brother  and  two  sisters  took 
each  one-third  of  the  property  devised  to  her  as  above.  In  March 
1847  Ann  dipfL-  having  been  married,  but  also  never  having  had  a 
child.  And  thereupon  Mrs.  Evers,  being  one  of  two  children  of  John. 
aCT  being  twenty-one  years  of  age,  claimed  one-twelfth  of  the  prop- 
er ty~devisedto_^lizad)eth^^ 

h appened,  the  two  children  of  John  became  entitled  to~HaIf~6f  th e 
one-third  ot  the  property  devised  to  Elizabeth  which  had  come  to 
Arfh  upon  her  death,  and  that  she,  as  one~of  them,  was  entitfed  to  the 
hart  ot  this  half,  or  one-twelfth  of  thewhole. 

7\.  special  verdict  was  found,  which  stated  the  above  facts :  and 
judgment  was  given  by  the  Court  of  Queen's  Bench  for  the  lessors  of 
the  plaintiff.  And  upon  this  judgment  the  present  writ  of  error_is 
brought.      ' 

This  will  came  under  the  consideration  of  the  Court  of  Queen's 
Bench  in  the  case  of  Doe  dem.  Dolley  v.  Ward,  9  A.  &  E.  582 :  and 
both  parties  acquiesce,  and,  as  we  think,  most  correctly,  in  the  pro- 
priety of  that  decision. 

We  are  to  take  it,  therefore,  as  clearly  established  that  by  this  will 
the  testator  gave  an  estate  for  life  to  his  daughter,  Elizabeth,  with  a 
contingent  remainder  in  fee  toner  unborn  children,  which,  on  the 
birth  oi  a  child,  became  a  vested  remainder  in  fee ;  and  that,  upon 
such  child  or  children  being  born,  but  failing,  if  male,  to  attain  twenty- 
three,  and,  if  female,  twenty-one,  then  he  gave  Elizabeth's  share  over 
by  an  executory  devise  to  his  other  three  children  equally.  Now  it  is 
clear-  thai  Llils  executory  devise  over  would  be  void  as  too  remote. 
But  in  this  part  ot  his  will  the  testator  also  provided,  by  a  distinct  and 
separate  clause,  that,  if  Elizabeth  should  have  no  children,  the  prop- 
ertv  devised  to  her  should  go  over  in  like  manner  to  his  three  remain- 
ing children.  Now  in  that  event  (which  happened)  the  contingent 
remainder  to  Elizabeths  children  never  vested;  and  so  the  devise 
over  took  cttcct.  not  as  an  executory  devise,  but  as  a  good  contTngent 
remainder  to  the  three  other  children  of  the  testator,  one  ofwhom 
was  the  testator's  daughter  Ann. 

In  the  event  therefore  whicK  has  happened,  the  devise  was  one  to 
Elizabeth  for  life,  contingent  remainder  to  her  unborn  issue  (which 
failed),  contingent  remainder,  as  to  one-third,  to  Ann  for  life,  with  a 
contingent  remainder  in  tee  to  Ann's  unhqrh  issue,  to  become  vested 
on  the  birtli  oi  a  childTahd^vith  the  devise  over  (on  which  the  present 


Ch.  5)  LIMITATIONS   AND  INDEPENDENT   GIFTS  539 

question  turns)  in  favor  of  the  children  of  her  surviving  brother  John 
and  sister  Sarah.  Now  Ann  died  never  having  had  a  child;  and,  con- 
sequently, the  contingent  remainder  in  fee  given  to  her  children  failed. 

We  must  look  therefore  at  the  t_erms  of  the  devise  over. 

They  are  as  follows :  "In  case  ofthe  death  of  my  saiTson  or  either 
of  my  said  two  daughters  without  leaving  a  child,  if  a  son,  who  shall 
live  to  attain  the  age  of  twenty-three  years,  or  if  a  daughter,  who 
shall  attain  the  age  of  twenty-one  yeafS,  Igive  tne  part  and  parts' 
such  children  or  child  would  be  entitled  to  as  aforesaTdirnto  the^iil d 
or  children  of  my  said  son  and  two  daughters  having  issue,  if  a  son  or 
sons,  hvmg  to  the  age  of  twentv-three  years,  and,  if  a  daughter  gr 
dau^iters,  livmg  to  attainthe  age  of  twenty^gne^yearsj^jfjyyo  of  my 
said  last-named  children  have  such  children  or  child,"  &c. 

Kow  here  thefe~a re  iTOtTlTe  two  events  which  were  separatelv  and 
d istinctly  mentioned  in  the  former  devise  overT  The  event,  if  she  shall 
havT;  no  children,  is  not  mentioned  in  terms  at  all, 

The  question  between  the  parties  is,  whether  this  devise  over  be 
void  or  not.  It  may  be  well  admitted  that  the  testator  intended  to  in- 
clude in  these  words  two  pvpt|];<;  :  first,  the  event  of  Ann  having  no 
child  at  all ;  for,  certainly,  if  she  never  had  a  child,  she  must  die  with- 
out leaving  a  son  who  could  attain  twenty-three  or  a  daughter  who 
could  attain  twenty-one ;  but,  sqcondlv.  he  also  intended  to  include  in 
these  same  w^ords  the  compound  event  of  her  having  a  child  and  tnat 
child  dying  under  the  prescribed  age.  This  second  event  is,  accord- 
ing to  all  the  cases,  too  remote  an  event  to  take  effect  according  to 
1  a w. "  1  lie  hrst,  it  it  stood  alone,  is  ie;^^i.  ine  tning  to  ne  settled  is 
the  principle  upon  which  the  court  is  to  act. 

In  the  first  place,  it  seems  established  that  the  time  f^  rnnstfnp  tViP 
will  is  at  the  testator's  death.  The  devise  must  be  legal  at  that  time, 
to 'oust  the  heir-at-law.  Now,  at  the  death  of  the  testator  and  in  the 
lifethne  of  x\nn,  how  would  this  devise  have  been  construed?  For  it 
is  not  sufficient  that,  on  the  happening  of  certain  events,  the  devise 
may  take  effect,  and,  if  limited  to  these  events  originally,  would  have 
been  valid :  but  it  ought  to  be  shown  that  the  devise  of  the  testator 
must  be  valid  and  legal  in  all  the  events  contemplated  by  him. 

This,  we  think,  is  the  principle  contained  in  the  passage  of  Sir  W. 
Grant's  judgment  in  Leake  v.  Robinson,  2  Meriv.  390,  in  which  he 
says :  "Executory  devise  is  itself  an  infringement  on  the  rules  of  the 
common  law,  and  is  allowed  only  on  condition  of  its  not  exceeding 
certain  established  limits."  In  a  devise  to  a  class,  therefore,  the  courts 
do  not  split  the  devise  into  its  parts  and  give  effect  to  the  legal  part 
of  it.  For  this,  says  Sir  \V.  Grant,  is  to  make  a  will  for  the  testator. 
He  says :  "I  give  my  property  to  the  wdiole  of  this  class,"  It  may 
be  that  the  persons  to  whom  he  is  not  permitted  by  law  to  give  it  are 
the  very  persons  in  favor  of  wdiom  he  includes  the  whole  class  in  his 
bounty :  and  therefore,  in  splitting  the  devise  into  its  parts,  you  may 
perhaps  violate  his  will,  even  as  to  those  to  whom  you  give  it.     If  he 


540  RULE  AGAINST  PERPETUITIES  (Part  4 

separates  the  devises  himself,  it  is  not  so.  Here  the  meaning,  and 
the  true  meaning,  of  this  clause  is,  In  every  event  which  can  happen 
in  which  Ann  dies  leaving  no  child  who  if  male  attains  twenty-three 
or  if  female  twenty-one,  I  give  the  estate  over.  That  is  what  he  says, 
and  what  he  means.  He  includes  all  these  events  in  one  class.  Some 
are  legal,  some  illegal.  How  is  the  court  to  separate  these  events, 
which  the  testator  has  expressly  joined  together,  without  making  a 
will  for  him? 

The  principle,  therefore,  seems  to  be  against  splitting  such  a  devise 
when  we  are  considering  the  question  wnetner  it  is  a  legal  one.  Now 
this  qTT5snon';-it  is  conceded,  ITmyi  hH  dt^let-tnhiea  as  on  readmg  the 
will  at  the  instant  of  the  testator's  death.  Do  the  cases  cited  affect 
this  principle  ? 

On  looking  at  them,  we  find  that  in  all  of  them  the  devise  in  any 
event  was  legal,  and  that  it  was  competent  to  the  testator  to  make  it. 
In  Jones  v.  Westcomb,  1  Eq.  Ca.  Abr.  245,  the  case  on  which  the 
Court  of  Queen's  Bench  proceeded,  this  was  so.  That  was  a  bequest 
to  the  wife  for  life,  and,  after  her  death,  to  the  child  with  which  she 
was  supposed  enceinte,  and,  if  such  child  should  die  before  twenty- 
one,  then,  as  to  one-third,  to  his  wife,  and  two-thirds  to  other  per- 
sons :  and  it  was  held,  the  wife  not  being  enceinte,  that  the  bequest 
over  took  effect.  But,  if  the  testator  had  distinctly  expressed  all  that 
the  court  held  to  be  included  in  the  words  he  used,  the  whole  would 
have  been  still  legal.  This  is  not  an  authority,  therefore,  for  splitting 
a  devise  and  giving  effect  to  the  legal,  rejecting  altogether  the  illegal 
part  of  it.  Gulliver  v.  Wickett,  1  Wils.  105,  which  is  in  truth  the  same 
case,  only  applying  the  will  to  real  estate,  is  to  the  same  effect.  And 
the  observations  of  the  court  in  this  latter  case,  as  to  the  validity  of 
the  executory  devise  over,  if  it  took  effect  as  an  executory  devise,  were 
material  if  this  necessity  for  the  devise  being  legal  in  all  the  contin- 
gencies contemplated  by  the  testator  be  the  true  principle  on  which 
the  court  acts,  and  may  reconcile  the  observations  of  Mr.  Fearne 
(Cont.  R.  p.  396)  with  those  of  Bavley,  J.,  in  Doe  dem.  Harris  v. 
Howell,  10  B.  &  C.  191,  200.  Meadows  v.  Parry,  1  Ves.  &  B.  124,  is 
to  the  same  effect.  These  cases  are  fully  explained  and  put  on  a  very 
clear  principle  by  Sir  W.  Grant  in  Murray  v.  Jones,  3  Ves.  &  B.  319. 
They  show,  no  doubt,  that  the  existence  and  failure  of  the  children  to 
whom  the  provisions  limited  is  made  is  not  in  all  cases,  and  was  not 
in  these  cases,  a  condition  precedent  to  the  devise  over.  But  they 
show  no  more,  and  do  not  at  all  apply  to  the  question  now  before  the 
court,  whether,  if  one  of  the  contingencies  be  illegal,  the  single  devise 
which  includes  that  contingency  with  others  becomes  void.  If  Lady 
Bath  had  separately  stated  in  her  will  the  two  contingencies,  in  either 
of  which  Mrs.  Markham  was  to  take,  each  would  have  been  legal ; 
and  the  court  held  that  her  including  them  in  one  expression  made  no 
difference.  It  is  like  expressing  the  individuals  of  a  class,  all  of  whom 
can  legally  take,  and  including  all  those  individuals  in  a  class  which  is 


Ch.  5)  LIMITATIONS  AND  INDEPENDENT   GIFTS  54 J 

good.  But  the  reverse  is  true  if  some  of  the  individuals  cannot  legally 
take.  There,  if  expressly  named,  the  will  is  carried  partly  into  effect. 
If  classed,  it  is  void  altogether. 

Suppose  that  this  had  been  the  limitation  in  a  deed :  To  Ann  for  life, 
remainder  to  her  children  in  fee,  and,  if  she  have  none  who,  if  a  male, 
attains  twenty-three,  or,  if  a  female,  attains  twenty-one,  then  over :  it 
is,  we  apprehend,  clear  enough  that  such  a  limitation  over  would  be 
void  altogether  at  the  common  law.  It  may  however,  says  Mr.  Fearne 
(Cont.  R.  p.  Z72)),  be  good  in  a  will,  or  by  way  of  use,  upon  a  contin- 
gency to  happen  within  a  reasonable  period.  Now,  if  so,  must  the 
contingency  here  so  happen  ?  We  think  not :  for  it  may  go  beyond 
the  time  allowed  by  law,  if  the  natural  and  full  effect  be  given  to  the 
words  of  the  testator. 

For  these  reasons,  we  think  that  the  judgment  of  the  Queen's  Bench 
must  be  reversed. 

Tudo-ment  reyersed. 

The  case  was  then  t)rought  to  th^Jiouse  of  Lords. 

The  judges  were  summoned,  and  Mr.  Justice  Wightman,  ]\Ir.  Jus- 
tice Williams,   Mr.   Baron   Martin,   Mr.   Justice  Crompton,   ]\Ir. 
Baron  Bramwell,  and  Mr.  Baron  Watson  attended. 
ThE'  Lord  Chancellor  [Lord  Chelmsford]  moved  that  the  fol- 
lowing question  be  put  to  the  judges  : 

Neither  of  the  testator's  daughters,  Elizabeth  Maria  and  Ann,  ever 
having  had  any  issue,  and  Ann,  the  survivor,  having  died  in  1847,  does 
the  will  contain  any  valid  devise  on  her  death  to  the  children  of  John 
and  Sarah  of  the  property  originally  given  to  Elizabeth  Maria  and 
Ann  respectively  for  their  lives? 

Mr.  Justice  Wightman.  My  Lords,  for  the  purpose  of  consider- 
ing the  question  proposed  by  your  Lordships,  it  will  not  be  necessary 
to  state  in  detail  the  terms  of  the  devises  and  limitations  in  the  will, 
as  they  are  stated  shortly  in  the  case  of  the  defendant  in  error,  and 
somewhat  more  at  length,  but  very  distinctly  and  correctly,  in  the 
judgment  of  the  Court  of  Exchequer  Chamber. 

The  question  in  effect  is,  whether  thejCpurt  of  Queen's  Bench  was 
right  in  holding  that  the  devise  over  to  the  children  of  John  and  Sarah 
took  effect  as  a  contingent  remainder  on  the  death  of  Ann  without 
issue,  or  whether  the  Court  of  Exchequer  Chamber  was  right  in  hold-' 
ing~that  the  devise  over  to  the  children  of  John  and  Sarah  was  one 
indivisible  executory  devise  which  could  not  be  split  or  separated  into 
two^  parts.  ^     """^ 

Upon  this  point  the  decision  of  the  Court  of  Exchequer  Chamber 
seems  to  be  mainly  founded  upon  the  judgment  of  Sir  William  Grant 
in  the  case  of  Leake  v.  Robinson,  2  Mer.  363.  In  that  case  the  limi- 
tation over  was  to  the  whole  of  a  class,  of  whom  some  were  capable 
and  others  incapable ;  and  it  was  held  by  Sir  William  Grant  that  such 
a  limitation  could  not  be  divided  and  be  good  as  an  executory  devise 
for  such  as  were  capable,  and  bad  for  those  that  were  incapable.    The 


542  RULE  AGAINST  PERPETUITIES  (Part  4 

class  was  indivisible,  except  by  the  testator  himself,  for  if  divided  after 
his  death  it  mig-ht  be  that  the  persons  of  the  class  who  were  by  law 
incapable  of  taking  in  remainder  were  the  very  persons  in  favor  of 
whom  he  included  the  whole  class ;  and  therefore,  if  the  devise  were 
split,  the  persons  who  would  take  might  not  be  those  whom  it  was  the 
intention  of  the  testator  to  benefit. 

But  the  present  case  is  upon  this  point  clearly  distinp-uishahlp ;  and 
the  limitation  over  seems  to  be  in  its  nature  divisihlp^  the  havincy  nn 
child  at  all  being  one  contingency,  and  the  havino-  a  child  wliich^  if  a 
son,  does  not  reach  the  age  of  twentv-three.  or  if  a  female,  twentv- 

/one,  being  the  other.  In  Doe  d.  Herbert  v.  Selby,  2  B.  &  C.  926,  it 
UJ.  wis  held  tnat  an  estate  might  be  devised  over  in  either  of  two  events, 
and  that  in  one  event  the  devise  may  operate  as  a  contingent  remain- 
der, and  in  the  other  as  an  executory  devise,  and  the  Court  of  Queen's 
Bench  in  the  judgment  in  the  present  case  considers  that  it  was  gov- 
erned by  the  case  of  Doe  v.  Selby. 

It  is  admitted  by  the  Court  of  Exchequer  Chamber  that  by  the 
words  used  by  the  testator  in  the  limitation  over,  he  intended  to  in- 
clude two  events,  first,  the  event  of  Ann  never  having  a  child  at  all, 
and  the  compound  event  of  her  having  a  child,  and  that  child  dying 
within  the  prescribed  age.  The  first  event,  if  it  stood  alone,  was  legal. 
T he  second  event  was  too  remote  to  take  effect  according  to  law . 
The  Court  of  Exchequer  Chamber,  however,  was  of  opinion,  that  the 
testator  included  all  these  events,  some  legal,  others  illegal,  in  one 
class,  and  that  the  court  could  not  separate  them  ;  that  the  true  mean- 
ing of  the  clause  was,  "in  any  event  which  can  happen  in  which  Ann 
dies  leaving  no  child,  who,  if  male,  attains  twenty-three  years,  or  if 
female,  twenty-one,  I  give  the  estate  over." 

The  whole  question,  therefore,  as  before  observed  is,  whether  the 
clause  for  carrying  the  estate  over  is  divisible  or  not.  If  it  is,  the 
appellants  ought  to  succeed,  if  not,  the  respondents  ought  to  succeed. 
The  terms  used  in  the  limitation  over  include  two  contingencies ; 
would  there  have  been  any  real  difference  if  the  terms  had  been  to 
Ann  for  life,  with  remainder  to  her  children  in  fee,  and  if  she  has  no 
child,  or  if  she  have  a  child  who  if  a  son  shall  not  attain  twenty-three 
years,  or  if  a  daughter  who  shall  not  attain  twenty-one  years,  then 
over?  In  such  case  it  can  hardly  be  doubted  but  that  the  estate  would 
be  devised  over  in  either  of  two  events,  and  that  in  one  event  the  de- 
vise over  would  be  good  as  a  remainder,  though  the  second  alternative 
would  be  objectionable  as  an  executory  devise  on  the  ground  of  re- 
moteness. The  Court  of  Exchequer  Chamber  remarks  that  in  the 
case  of  Jones  v.  Westcomb,  Gulliver  v.  Wickett,  and  the  other  cases 
cited  upon  the  argument,  the  limitations  over,  whether  divisible  or 
not,  were  in  any  event  legal,  and  those  cases,  therefore,  do  not  affect 
the  question  in  this,  which  turns  upon  the  divisibility  of  the  contin- 
gencies ;  and,  commenting  upon  the  case  of  Murray  v.  Jones,  the 
court  observes,  "That  if  Lady  Bath  had  separately  stated  in  her  will 


Ch.  5)  LIMITATIONS   AND   IXDEPEXDENT   GIFTS  543 

the  two  contingencies  in  either  of  which  Mrs.  Markham  was  to  take, 
each  would  have  been  legal,  and  her  including  them  in  one  expression 
made  no  difference.  It  is  like  expressing  the  individuals  of  a  class  all 
of  whom  can  legally  take,  which  will  be  good ;  but  the  reverse  is  the 
case  if  some  of  the  individuals  cannot  legally  take."  That  was  the 
case  in  Leake  v.  Robinson,  which  is  clearly  distinguishable  from  the 
present,  for  the  reasons  already  stated ;  and  it  may  indeed  be  cited  as 
an  authority  to  show  that  the  limitation  over  in  that  case  might  have 
been  good,  if  the  terms  used  had  been  such  as  to  separate  such  part  of 
the  class  as  could  take  from  such  as  could  not. 

No  case  or  authority  has  been  cited  to  show  that  where  a  devise 
over  mcludes  two  contingencies  which  are  in  their  nature  divisible,  and 
one~ot  which  can  operate  as  a  remainder,  they  mav  not  be  divided 
thougli  included  in  one  expression :  and  our  opinion  does  not  at  all 
conflict  with  the  authority  of  the  cases  of  Proctor  vTThe  P.ishnp  oT 
Bari^  and  ^;\ells^Z  H.  Bl.  358.  and  Tee  v.  Audlev.  1  Cox.  C.  C.  324/in 
neither  ot  which  "cases  was  it  possible  for  th^  limit;^ti'^n  over  to  oper 
ate  aS  Z  femamder. 

Ave  are  therefore  of  opinion,  for  the  reasons  we  have  given,  that 
the  Court  of  Exchequer  Chamber  was  wrong  in  holding  that  the  con- 
tingencies in  the  limitation  over  could  not  be  separated ;  and  as  that 
was  the  ground  of  the  decision,  it  is  unnecessary  to  enter  into  the  con- 
sideration of  various  points  which  were  made,  and  cases  which  were 
cited  upon  the  argument  before  your  Lordships,  as  we  think  that  the 
devise  was  divisible,  and  that  the  judgment  of  the  Court  of  Queen's 
Bench  was  right,  and  that  the  will  contained  a  valid  devise  on  the 
death  of  Ann  to  the  children  of  John  and  Sarah  of  the  property  origi- 
nally given  to  Elizabeth  Maria  and  Ann  respectively  for  their  lives. 

Lord  Cranworth.  My  Lords,  in  this  case  I  do  not  propose  to 
trouble  your  Lordships  by  going  over  the  facts,  or  stating  the  terms 
of  the  devise.  The  will  has  been  so  fully  considered,  that  after  the 
unanimous  opinion  which  we  have  received  from  the  learned  judges 
upon  its  construction,  I  think  it  is  unnecessary  for  me  to  do  more  than 
to  state  to  your  Lordships  that  I  concur  in  the  opinion  of  the  judges, 
and  very  shortly  to  state  the  grounds  of  that  concurrence. 

I  think  that  the  gift  to  the  children  of  John  and  Sarah  on  the  death 
of  Ann  without  issue  in  1847  took  effect  as  a  contingent  remainder 
and  not  as  an  executory  devise,  and  so  was  good ;  because  when  the 
particular  estate  determined,  the  contingency  on  which  the  remainder 
was  to  take  effect  had  happened. 

On  the  death  of  Ann,  the  testator  gives  what  she  had  enjoyed  for 
her  life  to  her  children,  that  is,  sons  at  the  age  of  twenty-three  and 
daughters  at  twenty-one.  This  devise,  according  to  the  decision  of 
the  Court  of  Queen's  Bench  in  Doe  d.  Dolley  v.  Ward,  would,  if  Ann 
had  left  any  children,  have  given  them  a  vested  estate  in  fee  simple 
with  a  subsequent  executory  devise,  or  attempted  executory  devise  to 
the  children  of  John  and  Sarah  in  the  event  of  the  sons  dying  under 


544  RULE   AGAINST   PERPETUITIES  (Part   4 

twenty-three.  This  would  have  been  bad  for  remoteness.  But  in  the 
event  which  happened  the  gift  to  the  children  of  Ann  never  took 
efifect,  so  that  the  question  as  to  the  remoteness  of  the  gift  over  on 
the  death  of  those  children  under  twenty-three  never  arose.  On  the 
death  of  Ann,  the  contingency  on  which  one  sixth  of  the  shares  of 
Elizabeth  and  Ann  was  given  to  the  children  of  John  had  happened, 
for  Ann  had  then  died  without  any  child  who  could  attain  the  age  of 
twenty-three  years ;  and  there  is  no  rule  which  could  prevent  the  es- 
tate from  then  vesting  in  those  to  whom  it  was  given  on  a  contingency 
which  happened  at  the  instant  when  the  particular  estate  determined. 

The  case  is  not  distinguishable  in  principle  from  Gulliver  v.  Wickett. 
There,  it  is  true,  the  devise  over,  if  there  had  been  a  child,  was  on  an 
event  not  too  remote,  and  which,  therefore,  might  have  taken  effect. 
In  that  respect  it  differs  from  the  present  case ;  but  the  court  held 
that  the  devise  in  the  event  which  did  happen,  of  there  being  no  child, 
took  effect,  not  as  an  executory  devise,  but  as  a  contingent  remainder. 
I  state  that,  although  I  know  that  a  very  high  authority,  Mr.  Fearne 
(Cont.  Rem.  9th  Ed.  p.  396),  says  the  contrary;  but  looking  at  the 
case,  I  can  come  to  no  other  conclusion.  The  note  of  the  reporter,  at 
page  106,  appears  to  me  to  show  that  he  did  not  fully  appreciate  the 
force  of  Chief  Justice  Lee's  language,  which  seems  to  have  been  studi- 
ously framed  with  the  view  of  showing  that  in  one  event,  that  which 
did  not  happen,  namely,  the  event  of  there  having  been  a  child,  the 
gift  over  must  have  taken  effect  (if  at  all)  as  an  executory  devise,  but 
in  the  event  which  did  happen,  namely,  there  being  no  child,  the  gift 
took  effect  as  a  remainder.  The  language  is  this ;  after  stating  the 
case,  he  says,  taking  the  proviso  to  be  a  limitation,  and  not  a  condition 
precedent,  these  cases  amount  to  a  full  answer  (the  cases  he  had  re- 
ferred to),  and  therefore  we  are  all  of  opinion,  "That  the  true  con- 
struction of  this  will  is,  that  here  is  a  good  devise  to  the  wife  for  life, 
with  remainder  to  the  child,  in  contingency  in  fee,  with  a  devise  over, 
which  we  hold  a  good  executory  devise,  as  it  is  to  commence  within 
twenty-one  years  after  a  life  in  being,  and  if  the  contingency  of  a  child 
never  happened,  then  the  last  remainder  to  take  effect  upon  the  death 
of  the  wife ;  and  the  number  of  contingencies  is  not  material,  if  they 
are  all  to  happen  within  a  life  in  being  or  a  reasonable  time  after- 
wards." 

Now,  I  am  aware  that  Mr.  Fearne  treats  the  gift  as  an  executory 
devise,  and  not  as  a  remainder.  But  this  is  directly  at  variance  with 
the  language  of  the  court  (which  I  have  just  read),  and  as  I  think  with 
the  well-understood  distinctions  between  executory  devises  and  con- 
tingent remainders.  If  the  language  of  the  gift  over  had  been  that, 
"In  case  of  the  death  of  my  said  son,  or  either  of  my  said  two  daugh- 
ters without  leaving  a  child  who  shall  attain  the  age  of  twenty-three 
years  or  without  ever  having  had  a  child,  then  I  give  the  share  of 
such  son  or  daughter  unto  the  children,"  &c. ;  surely,  on  the  happen- 
ing of  the  latter  alternative,  namely,  the  death  of  one  of  the  daughters 


Ch.  5)  LIMITATIONS   AND   INDEPENDENT   GIFTS  545 

without  ever  having  had  a  child,  the  children  taking  under  the  gift 
over,  would  have  taken  a  remainder.  They  would  have  taken  an  es- 
tate expressly  given  to  them  on  the  determination  of  the  preceding 
life  estate,  given  to  them,  it  is  true,  on  a  contingency  which,  according 
to  the  hypothesis,  would  have  happened  at  the  instant  when  the  par- 
ticular estate  came  to  an  end.  I  can  see  no  distinction,  when  we  are 
only  construing  the  language  of  the  will,  between  the  case  where  the 
contingency  of  dying  without  having  had  a  child  is,  as  I  have  suggest- 
ed, expressed,  and  wdiere  it  is  implied,  as  it  is  in  the  present  case. 
There  is  a  contingent  remainder  in  fee  to  the  child  of  the  tenant  for  life 
if  she  had  had  one ;  if  she  had  none  then  there  is  a  gift  to  others  in 
fee ;  the  contingency  must  be  determined  at  her  death ;  and  whether 
the  result  should  be  to  give  the  estate  to  her  own  child,  or  to  the  chil- 
dren of  her  brother  and  sister,  in  either  case  the  gift  must  take  effect 
as  a  remainder,  for  no  prior  estate  is  divested  or  displaced. 

It  is  true  that  if  the  former  alternative  had  happened,  that  is,  if  the 
daughter,  tenant  for  life,  had  left  a  child,  then  there  was  a  gift  over 
on  the  death  of  that  child,  wdiich  was  void  for  remoteness.  That  gift 
over  could  only  take  efifect,  if  at  all,  as  an  executory  devise ;  for  it 
would  be  a  gift  over  divesting  the  fee  simple  given  to  the  child  of  the 
tenant  for  life.  But  I  see  no  reason  for  holding  that  because  in  one 
alternative  the  gift  must  have  operated  as  an  executory  devise,  there- 
fore It  must  do  so  in  the  other.  In  the  case  which  has  happened  there 
is'S'giit  to  the  children  ot  the"  surviving  son  and  daughter  taking  efifect 
immediately  on  the  termination  of  the  preceding  life  estate,  and  which 
therefore  is  unobjectionable. 

I  therefore  entirely  concur  in  the  unanimous  opinion  of  the  judges, 
that  the  judgment  of  the  Exchequer  Chamber  reversing  that  of  the 
Queen's  Bench  was  wrong. 

Lord  WenslivYDALE.  My  Lords,  I  entirely  agree  with  the  learned 
judges  in  the  answer  which  they  have  given  unanimously  to  the  ques- 
tion which  your  Lordships  proposed  to  them,  and  in  the  advice  given 
by  my  noble  and  learned  friend  who  has  preceded  me. 

The  facts  of  the  case  upon  which  the  question  arises  are  very  suc- 
cinctly and  distinctly  stated  in  the  judgment  of  the  Court  of  Exchequer 
Chamber  delivered  by  the  late  lamented  Baron  Alderson,  and  no 
fault  can  be  found  with  any  part  of  it  prior  to  that  relating  to  the 
clause  which  the  judges  in  the  Court  of  Exchequer  Chamber  held  that 
they  could  not  construe  divisibly ;  nor  can  any  objection  be  made  to 
the  principles  of  construction  which  the  court  laid  down,  except  as  to 
that  particular  clause. 

The  court  held  it  to  be  clearly  established  that  the  testator  gave  an 
estate  for  life  to  his  daughter  Elizabeth  Maria,  with  a  contingent  re- 
mainder in  fee  to  her  unborn  children,  which  became  vested  on  the 
birth  of  a  child,  and  that  upon  such  child  or  children  being  born,  but 
failing,  if  a  male,  to  attain  twenty-three,  and,  if  a  female,  twenty-one, 
4  Kales  Prop. — 35 


546  RULE  AGAINST  PERPETUITIES  (Part  4 

then  he  gave  Elizabeth  Maria's  share  by  executory  devise  to  his  three 
other  children  equally.  That  executory  devise  was  too  remote.  But 
he  also  provided  by  a  distinct  clause  that  if  Elizabeth  Maria  had  no 
child  the  property  should  go  over  in  like  manner  to  his  three  other 
children ;  and  that  event  having  happened,  the  devise  over  took  efifect, 
not  as  an  executory  devise,  but  as  a  good  contingent  remainder  to  his 
three  other  children,  one  of  whom  was  Ann.  She  died,  never  having 
had  a  child,  and  the  contingent  remainder  in  fee  to  her  children  failed. 
And  the  question  arises  on  the  terms  of  the  devise  over,  in  which  the 
court  observes  there  are  not  the  two  events  which  are  separately  and 
distinctly  mentioned  in  the  former  devise.  The  devise  over,  if  she 
shall  have  no  children,  is  not  mentioned  in  terms  at  all. 

The  court  admitted  that  the  testator  intended  to  include  in  the 
words  of  the  clause  the  double  events,  first  of  Ann  having  no  child  at 
all  (for,  certainly,  if  she  never  had  a  child,  she  must  die  without  leaving 
a  son  or  daughter  who  should  attain  the  required  age),  and,  secondly, 
the  compound  event  of  her  having  a  child,  and  that  child  dying  under 
the  prescribed  age.  But  the  court  did  not  feel  itself  at  liberty,  in  the 
case  of  an  executory  devise,  so  to  construe  the  clause,  but  acted  on 
the  principle  that  a  devise  to  a  class,  as  Sir  William  Grant  held  in  the 
case  of  Leake  v.  Robinson,  could  not  be  split. 

In  concurrence  with  the  opinion  we  have  received  from  the  learned 
judges,  I  think,  this  is  a  mistake.  The  gift  to  a  class  is  a  gift  to  a 
body  of  persons,  uncertain  in  number  at  the  time  of  the  gift,  but  to  be 
ascertained  at  a  future  time,  and  who  are  all  to  take  equally,  the  share 
of  each  depending,  as  to  amount,  upon  the  ultimate  number  of  per- 
sons (see  1  Jarman  on  Wills,  287-295),  and  that  ultimate  number  is 
incapable  of  being  ascertained  within  legal  limits.  Such  a  devise  as 
this,  Sir  William  Grant  held  he  could  not  split  into  portions,  for  that 
would  be  to  make  a  new  will.  But  that  doctrine  is  entirely  inapplica- 
ble to  this  case.  There  is  nothing  to  prevent  the  construing  of  the 
clause  in  the  first  instance,  and  ascertaining  its  proper  meaning, 
though  it  be  an  executory  devise,  and  having  ascertained  its  meaning, 
to  apply  the  rules  of  law  to  it.  So  doing  in  this  case,  there  cannot  be 
a  doubt  that  the  meaning  of  the  clause  is  what  the  Court  of  Queen's 
Bench  suggests  it  to  be,  and  its  legal  efifect  is  precisely  the  same  as  if 
the  testator  had  provided,  in  express  words,  for  the  event  of  Ann 
having  no  children,  as  he  had  done  in  the  former  clause  as  to  Eliza- 
beth having  none.  So  reading  this  clause,  there  is  no  doubt  that  in 
the  event  which  happened  of  Ann  having  no  children,  the  gift  over 
tooK  ettect  Dy  way  ot  contmgent  remamden 

RbRD  Chelmsford.  My  Lords,  the  question  jn  this  case  is,  wheth- 
er the  devise  over  in  case  of  the  testator's  daughter  Ann  dying  with- 
out issue,  or  in  case  of  all  the  children  which  she  might  have  dying,  if 
a  son,  under  the  age  of  twenty-three  years,  or  if  a  daughter,  under 
the  age  of  twenty-one  years,  will  embrace  the  case,  which  is  not  ex- 
pressly mentioned,  of  the  daughter  Ann  never  having  a  child  at  all ; 


Ch.  5)  LIMITATION'S  AND   INDEPENDENT   GIFTS  547 

and  if  so,  whether  the  devise  over  is  good  in  that  event,  or  whether  it 
must  not  all  be  taken  together,  and  the  part  with  respect  to  the  sons 
dying  under  the  age  of  twenty-three  being  too  remote  an  event  to 
take  effect  according  to  law,  the  whole  devise  must  not  be  held  to  be 
void. 

Both  the  Court  of  Queen's  Bench  and  the  Court  of  Exchequer 
Chamber  consider  that  the  devise  in  question  included  the  case  of  the 
daughter  Ann  having  no  child ;  Mr.  Baron  Alderson,  who  delivered 
the  opinion  of  the  Court  of  Error,  saying :  "It  may  be  well  admitted 
that  the  testator  intended  to  include  in  the  words  two  events :  first, 
the  event  of  Ann  having  no  child  at  all,  for  certainly,  if  she  never  had 
a  child,  she  must  die  without  leaving  a  son  who  could  attain  twenty- 
three,  or  a  daughter  who  could  attain  twenty-one ;  but  secondly,  he 
also  intended  to  include  in  the  same  words  the  compound  event  of  her 
having  a  child,  and  that  child  dying  under  the  prescribed  age."  But 
the  Court  of  Queen's  Bench  held  that  the  limitation  might  operate  as 
a  contingent  remainder,  in  the  event  of  Ann  having  no  child,  which 
would  of  course  take  effect,  if  at  all,  upon  the  determination  of  her  life 
estate,  although,  if  she  had  died  leaving  children,  the  limitation  would 
have  been  void,  as  it  would  then  only  take  effect  as  an  executory  de- 
vise, and  would  be  bad  as  being  too  remote.  The  judges  in  the  Court 
of  Exchequer  Chamber,  on  the  contrary,  held  that,  although  the  limi- 
tation inchided  the  event  of  Ann's  having  no  child,  which  would  of 
course,  if  it  had  stood  alone,  be  a  perfectly  vahd  bequest,  to  take  effect 
on  Ann's  death,  yet  that  being  entire  and  indivisible,  and  part  of  it 
depending  upon  an  event  too  remote  to  take  effect  according  to  law, 
it  was  altogether  void.  The  ground  upon  which  they  proceeded  was, 
that  a  devise  upon  different  contingencies  can  only  be  split  into  its 
parts,  and  effect  given  to  one  part  of  it,  where  all  the  contingencies 
contemplated  by  the  testator  are  legal,  and  for  this  reason  they  dis- 
tinguished the  case  of  Jones  v.  Westcomb  upon  which  the  Court  of 
Queen's  Bench  proceeded,  and  the  case  of  Gulliver  v.  Wickett,  which 
was  upon  the  same  will,  from  the  present  case.  But  it  appears  to  me 
that  the  distinction  is  not  to  be  supported  either  upon  principle  or  by 
authority.  It  is  conceded  by  the  Court  of  Error  that  the  limitation 
in  question  involves  a  contingency  with  a  double  aspect,  depending 
upon  events  which  are  distinct  and  separate  from  each  other.  The 
alternative  contingencies  must  therefore  be  taken  as  if  they  had  been 
separately  and  distinctly  expressed.  Why  then  should  the  words  of 
contingency,  on  which  the  void  estate  was  intended  to  be  limited, 
affect  the  valid  estate  to  which  they  do  not  apply?"  And  can  there  be 
any  difference  in  principle  between  cases  where'fhe  alternative  lifnita- 
tions,  though  distinct  and  separate  in  their  nature,  are  both  involved 
in  words  which  apply  equally  to  and  include  within  them  both  the 
limitations  and  those  where  each  of  the  limitations  is  separately  ex- 
pressed by  its  appropriate  description?  If  this  is  so,  the  opinion  of 
the  Court  of  Exchequer  Chamber  is  opposed  to  the  authority  of  the 


548       •  RULE   AGAINST   PERPETUITIES  (Part  4 

cases  of  Leake  v.  Robinson,  Goring  v.  Howard,  16  Sim.  325,  and  oth- 
er cases  which  relate  to  personal  property,  and  Alonypenny  v.  Dering, 
2  De  G.,  AI.  &  G.  145,  which  is  a  case  of  real  property.  The  case  of 
Proctor  V,  The  Bishop  of  Bath  and  Wells  was  pressed  upon  your 
Lordships  as  a  conclusive  authority  in  favor  of  the  defendant ;  but  it 
appears  to  me  to  afford  him  no  assistance.  In  that  case  there  was  no 
possibility  of  the  limitation  ever  taking  effect  independently  of  the 
first  devise.  It  was  limited  upon  the  event  of  Thomas  Proctor  having 
no  son  capable  of  entering  into  holy  orders.  This  must  necessarily 
have  been  contingent  during  the  life  of  Thomas  Proctor,  the  devise 
over  was  wholly  dependent  upon  it,  and  as  the  court  said,  "The  words 
of  the  will  could  not  admit  of  the  contingency  being  divided."  If  the 
devise  over  had  been  in  case  Thomas  Proctor  should  have  no  such 
son  at  the  death  of  the  testator,  it  would  have  been  more  hke  the 
present  case,  and  would  have  exactly  resembled  Monypenny  v.  Der- 
ing, and  there  would  have  been  no  doubt,  notwithstanding  the  invalid- 
ity of  the  devise  to  the  son  of  Thomas  Proctor,  that  the  alternative 
limitation  would  have  been  good. 

I  therefore  concur  in  the  opinion  which  has  been  expressed  by  my 
noble  and  learned  friends,  that  the  judgment  of  the  Court  of  Queen's 
Bench  was  correct,  and  that  the  judgment  of  the  Court  of  Exchequer 
Chamber  reversing  that  judgment  was  erroneous,  and  ought  to  be 
reversed. 

Lord  Brougham.  My  Lords,  I  entirely  agree  with  all  my  three 
noble  and  learned  friends  who  have  addressed  your  Lordships,  and 
with  the  learned  judges  who,  after  full  consideration,  have  given  a 
clear  and  unanimous  opinion  upon  the  subject.  As  to  the  cases,  of 
which  there  are  several,  I  need  not  go  into  them.  One  of  them  is 
Proctor  V.  The  Bishop  of  Bath  and  Wells.  In  that  case  there  was  no 
particular  estate  to  support  the  contingent  remainder,  and  it  was 
clearly  an  executory  devise.  There  were  also  several  other  cases 
which  I  need  not  go  into,  as  my  noble'  and  learned  friends  have  refer- 
red to  them.  I  therefore  move  your  Lordships  to  pronounce  judg- 
ment for  the  plaintiff  in  error,  reversing  the  judgment  of  the  Court  of 
Exchequer  Chamber,  and  setting  up  the  judgment  of  the  Court  of 
Queen's  Bench. 

Judgment  of  the  Court  of  Exchequer  Chamber  reversed,  and  judg- 
ment given  tor  the"  plaintiff  in  error.^ 

5  The  principal  case  was  misapplied  in  Watson  v.  Toung,  28  Ch.  D.  436 
(1S85),  but  its  correct  application  was  made  in  In  re  Bence,  [1891]  3  Ch. 
242,  and  in  In  re  Hancock,,  [1901]  1  Ch.  (C.  A.)  4S2,''aud  [19021  A.  C.  14, 
where  the  misapplication  in  Watson  v.  Young  was  noted. 


Ch.  5)  LIMITATIONS  AND  INDEPENDENT   GIFTS  549 

STORRS  V.  BENBOW. 

(Court  of  Chancery,  1853.    3  De  Gex,  M.  &  G.  390.) 

The  Lord  ChancEIvLOR  ®  [Lord  Cranworth].  I  was  perfectly 
prepared  to  dispose  of  this  case  three  months  ago,  but  was  told  that 
the  point  was  very  much  the  same  as  that  raised  in  Gooch  v.  Gooch, 
3  De  G.  M.  &  G.  366,  and  that  the  parties  therefore  wished  the  matter 
to  stand  over  until  that  case  was  disposed  of,  thinking  it  might  have  a 
material  bearing  upon  the  present  question.  I  confess,  however,  that 
this  appears  to  me  to  be  a  perfectly  clear  case,  and  to  be  independent 
of  any  decision  in  Gooch  v.  Gooch. 

The  question  arises  upon  a  clause  in  a  codicil  which  is  in  these 
words :  "Item.  I  direct  my  executors  to  pay  by  and  out  of  my  per- 
sonal  estate  exclusively  the  sum  of  £500  apiece  to  each  child  that  may 
b(^born  to  either  of  the  children  of  either  of  my  brothers  lawfully  te- 
goTten,  to  be  paid  to  each  ot  them  on  his  or  her  attainmg  the  age"of 
twenty-one  years  without  beneht  ot  survivorship."  This  is  a  money 
legacy  to  each  child  of  any  nephew  the  testator  had  or  might  have. 
The  testator  had  brothers  living ;  but  there  might  be  legacies  .too_re- 
mote,  because  the  gift  included  legacies  to~children  of  a  child  not  yet 
born. 

Tlie  bill  was  filed  twenty  or  thirty  years  ago ;  and  the  cause  was 
heard  before  Sir  John  Leach.  The  argument  then  was,  that  the  gift 
was  too  remote;  but  Sir  Tohn  Leach  thought  that,  according  to  the 
true  construction  of  the  clause,  children  born  in  the  lifetime  ot  the 
testalot'  weie  ineant.  and  therefore  he  said  the  gift  could  not  be  too 
remote,  lor  it  only  let  in  children  that  mi^ht  be  borp  bofwopn  fhp  r]atp 
of  the  will  and  the  deatlT  A  decree  was  accordingly  made  declaring 
that  tlie  children  in  esse  only  at  the  time  of  the  death  of  the  testator 
were  entitled  to  the  legacies,  and  it  was  referred  to  the  master  to  in- 
quire, &c.  The  master  found  that  the  plaintiff  was  in  esse  in  this 
sense ;  namelv.  that  the  testator  died  in  October  and  the  piaintitt  was 
born  six  months  atterwards ;  and  1  think  he  was  so.  The  quesiion 
then  Is  whether  he  is  entitled;  I  am  of  opinion  tliat  he  certainly  is ; 
for  he  was  a  child  in  esse  within  the  meaning  put  upon  the  clause  bv 
Sir  John  Leach. 

There  are  three  ways  in  which  this  gift  might  be  interpreted :  it 
might  mean  children  that  were  in  esse  at  the  date  of  the  will :  it  might 
mean  children  that  might  come  into  esse  in  the  lifetime  of  the  testator ; 
and  it  might  mean  children  born  at  any  time.  I  own  it  seems  to  me 
that  thjc^  gpntlpmnn  k  pntitled  quacunque  Via.  If  it  was  to  the  chil- 
dren then  in  being,  he  would,  I  think,  be  probably  within  the  meaning 
of  such  description;  but  if  it  was  to  children  to  come  in  esse  in  his 
lifetime  and  afterwards  to  be  born,  it  seems  to  me  that  a  child  in  ventre 

«  The  opinion  onl}-  is  here  given. 


550  RULE   AGAINST  PERPETUITIES  (Part  4 

sa  mere  at  the  death  of  the  testator  was  a  child  "hereafter  to  be  bom" 
within  the  meaning  of  the  provision. 

The  rule  that  makes  a  limitation  of  this  kind  mean  children  at  the 
death  of  the  testator  is  one  of  convenience :  a  line  must  be  drawn 
somewhere,  otherwise  the  distribution  of  the  testator's  estate  would  be 
stopped,  and  executors  would  not  know  how  to  act ;  but  that  rule  of 
convenience  cannot  be  applied  to  exclude  a  child  certainly  within  the 
meaning  of  the  limitation,  in  the  absence  of  any  contrary  expressed 
intention  of  the  testator.  I  think  therefore  that  Sir  John  Leach  was 
right,  supposing  the  interpretation  of  the  will  to  be  what  I  have  stated, 
and  that  this  child  certainly  comes  within  the  description.  I  must  add, 
h owever,  that  I  do  not  sav  that  the  gift  was  at  all  remote  it  iL-uigant 
a  child  to  be  born  at  any  time,  because  this  is  not  the  case  of  a  class ; 
it  is  a  gift  of  a  pecuniary  legacy  of  a  particular  amount^to  every  child 
of  every  nephew  which  the  testator  then  had,  or  of  every  nephew  that 
might  beTorn  after  his  death,  and  is  therefore  good  as  to  the  children 
of  the  nephews  h'enieii  had,  and  bad  as  to  the_children  of  nephews  to 
belborn  after  his  deatTT 

It  would  be  a  mistake  to  compare  this  with  Leake  v.  Robinson,  2 
Mer.  363,  and  other  cases  where  the  parties  take  as  a.  class ;  tor  the 
difficulty  which  there  arises  as  to  giving  it  to  some  and  not  giving  it 
to  others  does  not  apply  here.  The  question  of  whether  or  not-the 
children  of  after-born  nephews  shall  or  shall  not  take,  has  no  bearing 
at  all  upon  the  question  of  whether  the  child  of  an  existing  nephew 
takes ;  the  legacy  given  to  him  cannot  be  bad  because  there  is  a  legacy 
given  under  a  similar  description  to  a  person  who  would  not  be  able 
to  take  because  the  gift  would  be  too  remote.  I  give  therefore  ^q 
positive_02inion  upon  the  point  of  remoteness  generally  in  this  case, 
because  I  think  that  quacunque  via,  on  the  construction  of  the  will, 
there~is  nothing~to~7ustity  the  exclusion  from  taking  of  a^ild  who 
waFcbnceived  at  the  death  of  the  testator~anci  born~si?rTrr"seven  moiitli s 
afterwards!  If  the  wor"ds~iF"questionlTieant  children  who  though  not 
theiFiiT  existence  should  be  in  existence  at  the  death,  the  plaintiff  was 
in  existence  at  the  death ;  and  if  they  mean  children  born  at  any  time, 
he  was  born  and  must  have  been  born  if  at  all  within  such  a  time  as 
made  his  legacy  not  remote.  I  am  therefore  of  opinion  that  in  any 
way  he  is  entitled 


CATTLIN  v.  BROWN. 

(Court  of  Chancery,  1853.    11  Hare,  372.) 

The  question  arose  upon  a  devise  by  Frances  Bannister,  who  died 
in  1805,  to  Thomas  Bannister  Cattlin  for  life,  with  remainder  to  all 
and  every  the  child  and  children  of  the  said  Thomas^annister  Cattlin, 
during  their  natiiral  lives,  in  equal  shares  if  more~than  oneJan^L^hj^ 
the  decease  of  airy  or  either  of  such  child  or  children,  then  the  part 


Ch.  5)  LIMITATIONS   AND   INDEPENDENT   GIFTS  551 

or  share  of  him,  her,  or  them  so  dying  unto  his,  her,  or  their  child  or 
children  lawfnlly  begotten  or  to  be  begotten,  and  to  his,  her,  or  their 
heirs  forever,  as  tenants  in  common. 

The  testator  died  in  January,  1805. 

Thomas  Bannister  Cattlin  had  issue  five  children;  namely,  George, 
Emma,  Cecilia,  Caroline,  and  Clement,  who  were  born  in  the  lifetime, 
and  were  living  at  the  deatli_Df  Ike.  testato_r;  and  one  child  named" 
Judee,  who  became  the  wife  of  Adam  Brown,  and  went  to  India  in 
1828,  and  it  is  presumed  died  on  her  passage  or  immediately  after  her 
arrival,  as  she  was  not  afterwards  heard  of,  and  who  left  issue  sev- 
eral children,  some  of  whom  survived  Thomas  Bannister  Cattlin  the 
tenant  for  life.  Caroline,  one  of  the  children,  who  survived  the  tes- 
tator, had  also  issue  several  children.  Thomas  Bannister  Cattlin  also 
had  other  issue,  ten  children,  Thomas  IMagnus,  Charlotte,  Frederick 
Wilham,  Eliza,  Frederick  Fisher,  William,  Emily,  Clarissa,  Alary,  and 
Susannah,  born  after  the  decease_gfjtlieJjestator,  Of  these,  two,  Fred- 
erick William  and  Jihza,  diedin  his  lifetime  without  having  had  any 
issue.  Several  of  the  other  children  who  were  born  after  the  death  of 
the  testator  had  issue. 

The  devised  estate  was  subject  to  a  mortgage  created  by  the  tes- 
tator  for  securing  the  payment  of  £2000  and  interest;  and  under'^he 
decree  of  the  court,  made  in  1843,  the  same  estates  w^ere  conveyed  in 
fee  by  way  of  mortgage  to  secure  £2574  and  interest,  which  was  raised 
to  pay  the  debts  of  the  testator. 

The  authorities  referred  to  are  mentioned  in  the  judgment,  with  the 
exception  of  Griffith  v.  Pownall,  13  Sim.  393,  which  is  to  the  same 
effect  as  the  cases  referred  to  in  the  fifth  rule.  (Infra,  page  Z17  [see 
p.  554,  this  volume].) 

Vice-Chancellor  [Sir  William  Page  Wood].  The  point  in  this 
case  is  one  of  some  novelty,  and  I  therefore  propose  to  state  somewhat 
fully  the  reasons  that  have  led  me  to  the  conclusion  to  which  I  have 
come. 

The  question  arises  on  a  short  devise  to  Thomas  Bannister  Cattlin 
for  life,  and  after  his  decease  to  all  and  every  his  children  or  child, 
for  their  lives,  in  equal  shares,  and  after  the  decease  of  any  or  either 
of  them,  the  part  or  share  of  the  child  so  dying  unto  his,  her,  or  their 
children  or  child,  and  his,  her,  or  their  heirs  forever,  as  tenants  in 
common. 

There  were  some  children  of  Thomas  Bannister  Cattlin  in  esse  at 
the  death  of  the  te.;tator,  and  others  who  were  subsequently  born ;  and 
the  question  which  has  been  argued  is,  whether  the  remainder  in  fee 
tn  any  of  the  <rrandrhi1dren  could  take  effect,  it  being  adrnitfed  thnt  the 
remainder  in  fee  to  _the  children  of  those  children  of  Thoma.S_^Ban- 
nister  Cattlin  who  were  born  after  the  death  of  the  testator_cannot  take. 
effecf 

The  first  observation  that  arises  in  this  case  is,  that  the  limitations 
are  none  of  them  bv  way  of  executory  devise,  but  are  limitations  of 


552  RULE   AGAINST  TERPETUITIES  (Part  4 

contingent  remainders.  I  apprehend,  however,  that  a  contingent  re- 
manider  cannoFbe  limited  as  depending  on  tlie  t'"'"'^ii"ation  of  a  par- 
ticular estate,  whose  determination  will  not  necessarily  take  place  with- 
in~the  period  allowed  bv_  la\v.  Tt  has  been  sometimes  a  question 
whether  a  limitation  over  beyond  the  period  might  or  might  not  be  sup- 
ported as  a  good  contingent  remainder,  on  the  ground  of  its  destructi- 
bility  in  the  lifetime  of  the  tenant  for  life.  Mr.  Jarman  in  his  learned 
work  discusses  the  point,  and  observes,  "the  same  species  of  reasoning, 
by  which  a  remainder  or  an  executory  limitation,  to  arise  on  the  de- 
termination of  an  estate  tail,  is  supported,  might  seem  to  apply  to  a 
contingent  remainder,  which  is  liable  to  be  destroyed  by  the  act  of  the 
OAvner  of  the  preceding  estate  of  freehold,  no  estate  being  interposed 
for  its  preservation ;  but  the  writer  is  not  aware  of  any  authority  for 
the  application  of  the  doctrine  to  such  cases.  If,  therefore,  freehold 
lands,  of  which  the  legal  inheritance  is  in  the  testator,  be  devised  to  A. 
for  Hfe,  with  remainder  to  his  eldest  son  who  should  be  living  at  his 
decease  for  life,  with  remainder  in  fee  to  the  children  of  such  eldest 
son  who  should  be  living  at  his  (the  son's)  decease ;  although  A.  in  his 
lifetime  might  destroy  all  the  remainders,  and  the  eldest  son  after  his 
(A.'s)  decease  might  destroy  the  ultimate  remainder  in  fee  devised  to 
his  children,  Avithout  being  amenable  either  at  law  or  in  equity  to  the 
persons  whose  estates  are  thus  destroyed,  such  ultimate  remainder 
would,  nevertheless,  it  is  conceived,  be  void  for  remoteness,  on  the 
ground  that  the  destruction  in  these  cases  is  efifected  by  what  the  law 
calls  a  tortious  or  wrongful  act  (though  it  is  a  Avrong  without  a  rem- 
edy), the  perpetration  of  which  is  not  to  be  presumed."  1  Jarm.  Wills, 
226.  The  latter  observation  applies  very  strongly  to  this  case,  for  here 
the  legal  estate  is  outstanding  and  subject  to  a  mortgage,  and  the  party 
in  whnm  surh  Ipp-rI  estate  ^s  vesterrwoiikl  be,  ill  effect,  a  triistee  to  sup- 
port the  contingent  reniainder,  the  destruction  of  which,  under  such 
circumstances,  could  only  be  effected  by  an  act  which  would  be  doubly 
tortious.  The  rule  is  stated  in  the  able  argument  of  J\lr.  Preston,  in 
Mogg  V.  Mogg,  1  Mer.  654.  He  says,  "A  gift  to  an  unborn  child  for 
life  is  good,  if  it  stops  there  ;_bu^if^a  remainder  is  added  to  his^chil- 
dreri_orjissueaspurcl^  tliere  be^  a  liniitation 

of  the  time  within  which  it  is  to  Jake  effect."  Id.  664.  That  is,  I  thTiik, 
a  perTectly  accurate  statement  of  the  law  which  I  am  to  apply  to  this 
case. 

I  am  bound,  however,  in  this  case,  to  look  at  the  whole  question,  and 
to  consider  how  it  would  stand  on  the  doctrine  which  has  been  estab- 
lished'wTtlT  regard  to  gitts  by  way  ot  executory  devise" 

The  first  rule  is,  that  an  executory  devise  is  bad  unless  it  be  clear, 
at  the  death  of  the  testator,  that  it  must  of  necessity  vest  in  some  one, 
if  at  all,  within  a  life  in  being  and  twenty-one  years  afterwards.  This 
principle  will  be  found  expressly  stated  in  the  opinion  delivered  by  the 
present  Lord  Chancellor,  when  advising  the  House  of  Lords  in  the 
case  of  Lord  Dungannon  v.  Smith,  12  CI.  &  Fin.  546,  570. 


Ch.  5)  LIMITATIONS  AND   INDEPENDENT   GIFTS  553 

The  second  rule  is,  that  you  must  ascertain  the  objects  of  the  testa- 
tor's bounty,  by  construing  his  will  without  any  reference  to  the  rules 
of  law  which  prohibit  remote  limitations ;  and  having,  apart  from  any 
consideration  of  the  effect  of  those  rules  in  supporting  or  destroying 
the  claim,  arrived  at  the  true  construction  of  the  will,  you  are  then  to 
apply  the  rules  of  law  as  to  perpetuities  to  the  objects  so  ascertained. 

Thirdly,  if  the  devise  be  to  a  single  person  ans\vering  a_given  de- 
scription at  a  time  beyond  the  limits  allowed  by  law,  or  to  a  series  oI~ 
single  mdividuals  answering  a  given  descriptjon^nH  any  one  member 
of  the  series  intended  to  take  may  by  possibility  be  a  person  excluded 
by  the  rule  as  to  remoteness,  then  no  person  whatever~can"take,  be- 
cause the  testator  has  expressed  hisjntentTon_to  include  allTandlTor^to 
give  to  one  excluchiTg  otTiers.  One  of  the  earliest  cases  affirmmgThis^ 
rule" Is  that  ot  Proctor'vrThe  Bishop  of  Bath  and  Wells,  2  Hen.  Bl. 
358.  The  devise  in  that  case  was  of  an  advowson,  in  fee,  to  the  first 
or  other  son  of  Thomas  Proctor,  the  grandson  of  the  testatrix,  that 
should  be  bred  a  clergyman  and  be  in  holy  orders ;  but  in  case  he 
should  have  no  such  son,  then  to  another  grandson  of  the  testatrix  in 
fee:  and  it  was  held  that  the  first  devise  was  void  as  depending  on 
too  remote  a  contingency ;  and  that  the  latter  limitation,  as  it  depended 
on  the  same  event,  was  also  void,  for  the  words  of  the  will  would  not 
admit  of  the  contingency  being  divided.  In  the  recent  case  of  Lord 
Dungannon  v.  Smith,  12  CI.  &  Fin.  546,  it  was  sought,  in  support  of 
the  bequest,  to  show  that  one  of  the  series  of  persons  who  might  be 
the  heirs  male  of  the  body  of  the  grandson,  might  take  within  the  pre- 
scribed period,  and  was  not  therefore  within  the  objection ;  but  the 
answer  was,  that  "there  was  no  gift  to  him  in  terms  different  from 
the  gift  to  all  others  who  may  be  able  to  bring  themselves  within  the 
terms  of  the  gift,"  and  that  "\vhere  j^jtestatoi^as  made  a  generaLbe- 
quest,  einlim£iag— ar-ggeat^amnber^iaf  possible  obj^cts^-  thexe  is  no_aii- 
thority  for  holding  that  a  court  can  so_mnuld  it  as-to  say  that  ijtjsdi- 
visible  intn  two  classes,  the  onp  embrarin^jhe  lawful,  the  other  the  un- 
lawful  objects  of  his  bounty^"     12  CI.  &  Fin.  574. 

The  fourth  rule  is,  that  where  the  devise  is  toa  class^f_persons  an- 
swering  a  given  description7  and  any  membej^of  ^that  class~niay~pos- 
siblyTia^'e  to^e^rertriined  at  a  period  exceeding  the  limits  allowed  by 
law,  the  same  consec|uence  follows  as  in  the  preceding  rule,  and  for 
the  same  reason^  You  cannot  give  the  whole  property  to  those  who  are 
in  fact  ascertained  within  the  period,  and  might  have  taken  if  the  gift 
had  been  to  them  nominatim,  because  they  were  intended  to  take  in 
shares  to  be  regulated  in  amount,  augmented  or  diminished,  according 
to  the  number  of  the  other  members  of  the  class,  and  not  to  take  ex- 
clusively of  those  other  members.  Of  this  rule  the  cases  of  Jee  v. 
Audley,  1  Cox,  324,  Leake  v.  Robinson,  2  Mer.  363,  and  Gooch  v. 
Gooch,  14  Beav.  565,  are  illustrations.  Jee  v.  Audley  was  a  strong 
case  of  that  class,  for  there  all  the  children  actually  in  esse  might  have 


554  RULE  AGAINST  PERPETUITIES  (Part  4 

taken,  and  it  was  only  the  possibility  that  there  might  have  been  in- 
capable children,  which  excluded  those  who  were  capable. 

The  fifth  and  last  rule  to  which  I  need  to  advert,  is  this, — that  where 
there  is  a  gift  or  devise  of  a  given  sum  of  money  or  property  to  each 
meiTTber'oF  a  class,  and  the  gift  to  each  is  wholly  independent  of  the 
sanre  or  similar  gift  to  every  other  member  of  the  cFassTahd  cannotjbe 
augmented  or  diminished  whatever  be  the  number  of  the  other  mem- 
bers, theYVthe  gift  may  be ^ood  as  to  those  within  the  limits  allowed  by 
law^  This  was  settled  in  the  case  of  Storrs  v.  Benbow,  2  MyT.  &  K. 
46.  That  was  a  gift  of  £500  apiece  to  each  child  that  might  be  born 
to  either  of  the  children  of  the  testator's  brothers,  without  benefit  of 
sur^'ivorship.  The  legacy  of  £500  to  each  of  the  children  living  at  the 
death  of  the  testator,  who  alone  could  take,  was  unaffected  by  the  num- 
ber of  subsequently  born  children,  who  were  excluded ;  and  the  ex- 
clusion of  the  latter  did  not  therefore  affect  the  children  who  were 
capable  of  taking  under  the  bequest.  The  last  rule,  in  fact,  amounts 
to  no  more  than  this, — that  the  gift  being  single  to  each  party,  you 
have  only  to  consider  whether  that  particular  gift  must  of  necessity 
vest,  if -at  all  (according  to  the  first  rule),  within  the  limit  allowed  by 
law. 

Let  us  now  consider  the  facts  of  the  present  case,  and  apply  the  rules 
which  have  been  stated  to  those  facts ;  and  inquire  whether  the  gift  be 
or  be  not  to  a  number  of  persons  in  shares,  which,  being  distinctly  as- 
certained and  settled,  are  incapable  of  augmentation  or  diminution. 
And  here  I  would  observe,  that  it  at  first  appeared  to  me  that  there 
was  no  distinction  between  the  present  case  and  the  late  case  of  Green- 
wood V.  Roberts,  15  Beav.  92,  where  there  was  a  gift  of  an  annuity  to 
the  testator's  brother,  and,  after  the  decease  of  the  annuitant,  to  and 
amongst  such  of  his  children  as  might  be  then  living,  in  equal  shares 
during  their  lives,  with  a  provision  that  at  the  decease  of  any  of  them, 
so  much  capital  as  had  been  adequate  to  the  payment  of  the  annuity  to 
which  the  child  so  dying  had  been  entitled  during  his  or  her  life,  should 
be  forthwith  converted  into  money,  and  divided  equally  amongst  the 
children  of  him  or  her  so  dying,  as  and  when  they  should  severally  at- 
tain the  age  of  twenty-one  years ;  and  he  gave  them  vested  interests 
therein,  and  directed,  that  if  any  children  of  his  brother  should  at  his 
decease  be  dead,  and  had  left  issue,  such  issue  should  have  the  share 
the  parent  would  have  had  if  he  had  outlived  the  brother.  If  the  cir- 
cumstances of  that  case  had  not  in  fact  been  distinguishable,  I  should 
have  been  under  the  necessity  of  differing  from  it;  but  in  that  case 
the  children  of  the  brother,  who  were  born  and  in  esse  at  the  death  of 
the  testator,  might  all  have  been  dead  at  the  death  of  the  brother. 
The  case  therefore  fell  within  the  third  and  fourth  rules  which  I  have 
mentioned.  It  was  a  gift  to  a  class  to  be  ascertained  at  a  time  beyond 
the  limits  of  remoteness,  and  all  the  members  of  the  class  might  be  per- 
sons without  these  limits.     The  children  born  at  the  testator's  death 


Ch.  5)  LIMITATIONS   AND   INDEPENDENT   GIFTS  555 

might  take  no  interest  whatever.  On  this  ground  the  decision  in  Green- 
wood V.  Roberts  was,  no  doubt,  perfectly  right.'' 

The  testator  devises  the  estate  to  Thomas  Bannister  Cattlin  for  life, 
with  remainder  to  all  his  children  as  tenants  in  common  for  life,  with 
remainder  as  to  every  share  of  every  child  to  the  children  of  that  child 
in  fee.  Now,  to  follow  the  respective  shares  of  the  property,  suppose 
Thomas  Bannister  Cattlin  to  have  four  sons,  A.,  B.,  C,  and  D.,  and 
A.  and  B.  to  be  living  at  the  testator's  death  and  the  others  to  be  born 
aftenvards.  A.  and  B.,  on  the  testator's  death,  take  an  immediate  vest- 
ed interest  in  remainder  for  life,  expectant  on  their  father's  death, 
with  remainder  to  their  respective  children  in  fee,  subject  to  their  re- 
spective moieties  being  diminished  on  the  birth  of  C.  and  D.,  but  their 
exact  shares  are  ascertained  within  the  legal  limits  at  the  death  of  their 
father,  and  neither  their  life  interests  nor  the  remainder  in  fee  are  ca- 
pable of  being  wholly  divested  in  favor  of  any  party  beyond  the  legal 
limits,  neither  could  any  one  intended  by  the  testator  to  take  an  inter- 
est, but  at  a  period  beyond  the  legal  limits,  possibly  take  in  lieu  of  A. 
or  B. ;  their  shares  are  not  therefore  within  the  third  rule,  or  governed 
by  the  judgment  in  the  case  of  Lord  Dungannon  v.  Smith,  as  might 
have  been  the  case  if  the  devise  had  been  to  the  sons  of  Thomas  Ban- 
nister Cattlin  lining  at  his  decease,  with  remainder  to  their  sons  in  fee, 
for  then  there  might  possibly,  at  the  death  of  Thomas  Bannister  Cat- 
tlin, have  been  no  son  who  was  in  existence  at  the  testator's  death.  Nei- 
ther, again,  can  any  possible  event  happening  after  the  death  of  Thom- 
as Bannister  Cattlin,  augment  or  diminish  the  share  of  A.  or  B.  Here, 
then,  A.  andJB^  are  respectively  persons  in  esse  at  the  death  of  the  tes- 
tatoT,  who  are  to  take  a  share  that  must  be  ascertained  in  a  manner  in- 
capable of  augmentation  or  diminution  at  the  expiration  of  another 
life  in  esse.  What  is  there  to  prevent  the  limitation  of  that  share  to 
hi'm  for  life,  with  remainder  to  his  children  in  fee?  for  this  share  must 
of  necessity  vest,  if  at  all,  within  the  legal  limits,  and  complies,  there- 
fore, with  the  rule.  It  is  in  reality  the  case  of  Storrs  v.  Benbow,  sub- 
stituting a  given  share  for  a  given  sum  of  money. 

The  two  shares  of  A.  and  B.,  in  the  case  I  have  supposed,  are  wholly 
free  from  the  questions  which  arose  in  Leake  v.  Robinson,  or  Lord 
Dungannon  v.  Smith.  Sir  William  Grant,  in  Leake  v.  Robinson,  speak- 
ing of  the  bequest  made  by  the  testator  in  that  case,  says :  "He  sup- 
posed that  he  could  do  all  that  he  has  done, — that  is.  include  after-born 
children,  and  also  postpone  the  vesting  until  twenty-five.  But  if  he 
had  been  informed  that  he  could  not  do  both,  can  I  say  that  the  al- 
teration he  would  have  made  would  have  been  to  leave  out  the  after- 
born  grandchildren,  rather  than  abridge  the  period  of  vesting?  I 
should  think  quite  the  contrary"  (2  Mer.  388). 

The  present  case  is  free  from  the  difficulty  which  is  pointed  out  in 
those  remarks,  and  upon  which  the  point  in  that  case  was  determined. 

7  See,  however,  Gray,  Rule  Against  Perpetuities,  §  391.  Compare  with. 
Wilson  V.  Wilson,  28  L.  J.  Ch.  95. 


556  RULE  AGAINST  PERPETUITIES  (Part  4 

The  case  of  Dodd  v.  Wake,  8  Sim.  615,  which  was  mentioned,  comes 
within  tlie  same  categon^  as  Greenwood  v.  Roberts.  In  Dodd  v.  Wake, 
the  bequest  of  a  sum  of  money  was  hmited  unto  and  amongst  the  chil- 
dren of  the  testator's  daughter,  who  should  be  hving  at  the  time  the 
eldest  should  live  to  attain  the  age  of  twenty-four  years,  and  the  is- 
sue of  such  of  the  children  of  his  said  daughter  as  might  then  happen 
to  be  dead  leaving  issue,  to  be  equally  divided  between  or  among  them, 
share  and  share  alike,  as  tenants  in  common.  There  were  three  chil- 
dren living  at  the  death  of  the  testator,  who  might  have  attained  the 
age  of  twenty-four  within  the  proper  period, — but  upon  that  form  of 
bequest  it  seems  clear,  as  the  Vice-Chancellor  held,  that  the  testator  did 
not  intend  it  to  apply  of  necessity  to  any  existing  child,  but  to  take 
effect  only  when  the  first  child  attained  twenty-four,  which  might  pos- 
sibly be  without  the  period  of  legal  limitation.  The  children  living  on 
that  event  might  or  might  not  be  composed  of  a  class  not  in  existence 
at  the  death  of  the  testator. 

In  the  case  now  before  me,  no  person  out  of  the  prescribed  limits 
could  possibly  take  the  whole  of  A.  or  B.'s  share,  and  the  exact  amount 
ot  each  share_is  finallv  ascertained  within  the  legal  limits ;  and  from 
the  time  that  it  is  so  ascertained,  no  party  without  the  legal  period  can 
possibly  acquire  the  least  interest  in  it,  so  as  to  divest_0£,diminisIiJt; 
nor~can  anyl^arty  whojejiite^rest  is  so^sceTtaingd  3Yithin-tlie--petiod, 
or  his  children,  acquire  any  interest  in  the  shares  of  such  other  parties 
so  as  to^augmervTiln 

-fhe  limiratiim"a"s  to  the  shares  of  C.  and  D.  in  the  case  I  have  sup- 
posed would  be  clearly  void,  as  their  children  might  be  born  at  a  period 
exceeding  the  limits  which  the  law  allows,  they  themselves  not  being 
in  esse  at  the  death  of  the  testator.  I  observe  that  Mr.  Jarman  ex- 
presses a  doubt  whether  the  state  of  events  should  not  be  considered 
as  they  stood  at  the  date  of  the  will  (1  Jarm.  Wills,  229  n.  s).  It  is 
now  clear  that  the  death  of  the  testator  is  the  time  to  be  looked  at. 
The  rule  on  this  point  is  plainly  expressed  by  the  present  Lord  Chan- 
cellor  [Lord  Cranworth]  in  the  case  of  Lord  Dungannon  v.  Smith, 
where,  observing  that  a  gift  to  the  person  who  at  the  death  of  B.  should 
be  the  heir  male  of  his  body,  if  he  should  attain  twenty-one,  would  be 
good  as  to  the  person  who  should  be  heir  male  of  B.  at  his  death,  he 
adds :  "It  would  be  good,  because  at  the  death  of  the  testator  it  would 
be  absolutely  certain  that  the  bequest  must  take  effect,  if  at  all,  within 
twenty-one  years  after  the  death  of  B. ;  and  it  would  not  be  rendered 
invalid  by  a  subsequent  gift  to  others,  which  might  be  too  remote"  (12 
CI.  &  Fin.  574;  see  also  Williams  v.  Teale,  6  Hare  [31  Eng.  Ch. 
R.]  239). 

The  declaration  will  be,  that  the  estate  was  by  the  will  of  the  tes- 
tator well  linTJted  in  ji^e^  tn  tlie  rhildrp'''  ^f  thosp  (-lijjrVrpTwvt^Yhnrna.s 
Bannister  Cattlin  who  were  living  at  the  death  of  the  testator.^ 

8  Accord:     Dorr  v.  Lovorinj;,  117  Mass.  H-IO,  18  N.  E.  412  (ISSS). 
On   IvImitations  to   a   Series. — See  Waiiiman   v.   Field,   Kay,  507   (1854); 
Lyons  v.  Bradley,  16S  Ala.  505,  53  South.  244  (1010). 


Ch.  G)  MODIFYING   CLAUSES  557 

CHAPTER  VI 
MODIFYING  CLAUSES 


RING  V.  HARDWICK. 
(Court  of  Chancery,  1840.     2  Beav.  352.) 

The  question  in  this  case  arose  upon  the  will  of  William  Davies, 
dated  in  1825.  whereby  he  gave  his  residuary  personal  estate  to  P. 
Hardwick,  Wm.  Clare,  and  his  wife,  Mary  Davies,  upon  trust  to 
convert  and  to  invest  in  their  names  upon  government  security,  and 
to  pay  the  dividends  and  the  rent  of  the  leaseholds,  &c.  to  his  wife, 
Mary  Davies,  "during  the  term  of  her  natural  life  or  widowhood;" 
and  he  proceeded  as  follows:  "And  from  and  immediately  after  the 
death  or  second  marriage  of  my  \vite  the  said  ]Martha  Davies,  then 
upon  trust  that  they  the  said  Philip  Hardwick,  William  Clare  and 
INIary  Davies,  or  the  survivors,  &c.,  do  and  shall  with  all  convenient 
speed  collect  in  the  outstanding  parts  of  my  said  personal  estate,  and 
add  the  same  to  my  money  in  the  funds,  and  make  a  division  of  all  the 
said  money  then  in  the  funds,  &c.,  and  all  and  every  other  parts  or 
part  of  my  said  personal  estate  between  all  and  every  of  my  four  chil- 
dren, viz.  my  two  sons,  the  said  William  Davies  and  James  Davies, 
and  my  two  daughters,  the  said  Alary  Davies  and  Martha  Ann  West." 
He  then  provided  that  the  "division"  was  not  to  be  made  into  four 
equal  parts,  but  that  a  sum  of  £2000  should  be  appropriated  and  paid 
out  of  the  shares  of  his  sons,  James  and  William  Davies,  "to  or  for 
the  use  and  to  augment  the  shares  of  his  two  daughters,  the  said 
]\Iary  Davies  and  Martha  Ann  West,  in  equal  shares  and  proportions, 
to  be  received  by  or  for  the  use  of  them  the  said  Mary  Davies  and 
Martha  Ann  West.  And  subject  thereto  the  division  of  all  and  singu- 
lar his  said  personal  property  at  the  decease  or  second  marriage  of  his 
said  wife,  the  said  Martha  Davies,  was  to  be  equal,  share  and  share 
alike,  between  his  said  four  children,  viz.  his  said  two  sons,  the  said 
William  Davies  and  James  Davies,  and  his  ?aid  two  daughters,  the 
said  ]\Iary  Davies  and  Martha  Ann  West,  the  shares  of  his  said  two 
sons,  the  said  William  Davies  and  James  Davies,  were  to  be  paid  and 
transferred  to  them  immediately  upon  the  decease  or  second  marriage 
of  his  said  wife,  the  said  ]Martha  Davies, "upon  their  first  appropriat- 
ing thereout,  or  otherwise  paying  the  said  sum  of  £2000  to  or  for  the 
use  of,  and  to  augment  the  shares  of  his  said  two  daughters,  the  said 
Mary  Davies  and  the  said  Martha  Ann  West;  to  hold  the  said  shares 


558  RULE  AGAINST  PERPETUITIES  (Part  4 

unto  them  the  said  William  Davies  and  James  Davies  severally  and 
respectively,  and  their  several  and  respective  executors,  administra- 
tors and  assigns,  from  thenceforth  absolutely  forever." 

The  will  then  contained  a  gift  over  between  the  surviving  brother 
and  sisters  of  the  sons'  shares,  in  case  either  died  unmarried  and 
without  issue  before  their  shares  should  become  payable,  and  pro- 
ceeded as  follows :  "But  as  touching  and  concerning  the  shares  of 
my  said  personal  estate,  which  with  the  said  augmentations  will  be- 
come the  property  of  my  said  daughters,  the  said  Mary  Davies  and 
Martha  Ann  West,  upon  the  decease  or  second  marriage  of  my  said 
wife,  the  said  Martha  Davies,  my  directions  are,  and  I  do  hereby  de- 
clare my  will  and  meaning  to  be,  that  the  whole  of  such  shares  and 
augmentations  shall  immediately  upon  the  decease  or  second  marriage 
of  my  said  wife,  the  said  Martha  Davies,  be  invested  and  laid  out 
upon  government  security  at  the  Bank  of  England,  under  the  super- 
intendence of  them,  the  said  Philip  Hardwick  and  William  Clare,  or 
the  survivor  of  them,  in  manner  following,  that  is  to  say,  the  share 
and  augmentation  of  the  said  Mary  Davies  as  hereinbefore  mention- 
ed, and  also  any  other  augmentation  which  may  become  her  share  by 
the  decease  of  the  said  William  Davies  and  James  Davies  or  either 
of  them  unmarried  and  without  issue,  as  is  also  hereinbefore  men- 
tioned, or  by  the  decease  of  the  said  Martha  Ann  West,  as  herein- 
after mentioned,  shall  be  so  invested  and  laid  out  in  the  names  of  the 
said  Philip  Hardwick,  William  Clare  and  William  Davies,  or  the  sur- 
vivors, &c.  jointly  with  and  in  the  name  of  her  the  said  Mary  Davies, 
upon  trust  that  they  the  said  Philip  Hardwick,  William  Clare  and 
William  Davies,  &c.  do  and  shall  permit  my  said  daughter,  the  said 
Mary  Davies,  to  receive  the  dividends  for  life  for  her  separate  use;" 
"and  from  and  after  her  decease  then  upon  further  trust  that  they, 
the  said  Philip  Hardwick,  William  Clare  and  William  Davies,  &c. 
do  and  shall  pay,  divide  and  transfer  the  capital  money  which  formed 
the  share  and  augmentation  of  my  said  daughter,  the  said  Mary  Da- 
vies, unto,  amongst  and  between  all  the  children,  whether  male  or 
female,  and  both  male  and  female  of  my  said  daughter,  the  said  Mary 
Davies,  in  equal  shares  and  proportions,  and  to  become  vested  in  such 
children  respectively  at  the  age  of  twenty-five  years ;  and  if  any  such 
children  or  child  shall  die  under  that  age,  the  share  or  shares  of  all 
and  every  such  children  or  child  shall  be  divided  amongst  the  surviv- 
ors of  such  children  who  shall  live  to  attain  that  age;  and  if  only 
one  child  shall  live  to  attain  that  age,  then  the  whole  of  such  share 
and  augmentation  shall  belong  to  such  only  child  upon  his  or  her  at- 
taining that  age;  and  if  it  shall  happen  that  the  said  Mary  Davies 
shall  depart  this  life  without  leaving  any  such  children  or  child  who 
shall  live  to  attain  the  said  age  of  twenty-five  years,  then  the  whole 
of  the  said  shares  and  augmentations  shall  be  upon  trust,  and  shall  be 
divided  between  all  the  children  of  the  said  William  Davies,  James 
Davies  and  Martha  Ann  West,  whether  male  or  female,  and  both 


Ch.  G)  MODIFYING  CLAUSES  559 

male  and  female,  who  shall  live  to  attain  the  said  age  of  twenty-five 
years,  in  equal  shares  and  proportions ;  and  if  only  one  such  child 
shall  live  to  attain  that  age,  then  the  whole  of  such  share  and  aug- 
mentations shall  belong  to  such  only  child  upon  his  or  her  attaining 
that  age." 

The  testator  declared  similar  trusts,  mutatis  mutandis,  of  Martha 
Ann  West's  share,  and  contained  the  following  powers  of  mainte- 
nance and  advancement:  "Provided  always,  that  in  case  of  the  death 
of  the  said  Mary  Davies  or  the  said  Martha  Ann  West  before  their 
children,  or  the  children  or  child  of  either  of  therri,  shall  have  attained 
the  said  age  of  twenty-five  years,  or  in  case  they  the  said  Mary  Da- 
vies  and  Martha  Ann  West,  or  either  of  them,  shall  depart  this  life 
without  leaving  any  children  or  a  child,  and  there  shall  be  then  living 
any  children  or  a  child  of  the  said  William  Davies  and  James  Davies, 
or  either  of  them,  but  such  children  or  child  may  not  then  have  at- 
tained the  said  age  of  twenty-five  years,  it  shall  be  lawful  for  the  said 
Philip  Hardwick,  William  Clare,  and  William  Davies,  &c.  to  receive 
the  dividends  of  the  share  and  augmentations  of  the  said  Mary  Davies 
and  Martha  Ann  West,  or  either  of  them,  as  the  case  may  be,  and 
apply  the  same  dividends,  or  a  competent  part  thereof,  for  the  educa- 
tion and  maintenance  of  the  children  or  child  of  the  said  Mary  Davies 
and  Martha  Ann  West,  or  of  the  said  William  Davies  and  James  Da- 
vies, as  the  case  ma}^  be,  until  such  children  or  child  shall  attain  the 
said  age  of  twenty-five  years,  according  to  the  true  intent  and  mean- 
ing of  this  my  said  will  as  hereinbefore  mentioned  and  expressed  in 
respect  thereof;  and  upon  the  same  principle,  in  the  event  or  events 
last  aforesaid,  it  shall  and  may  be  lawful  for  the  said  Philip  Hard- 
wick, William  Clare  and  W^illiam  Davies,  &c.  with  the  consent  of  the 
said  Alary  Davies  and  Martha  Ann  West  during  their  respective  life- 
times, and  after  their  deaths  or  the  death  of  either  of  them,  then  in 
the  discretion  of  the  said  Philip  Hardwick,  William  Clare  and  Wil- 
liam Davies,  &c.,  by  sale  of  any  part  of  the  said  government  securi- 
ties, to  raise  and  advance  any  part  of  the  share  of  any  one  or  more  of 
the  said  children  for  their  advancement  in  the  world,  not  exceeding 
one  quarter  part  of  the  probable  expectant  share  of  every  one  such." 

The  testator  died  in  1827;  his  widow  survived  him  but  a  short  time; 
his  daughter,  Mary  Davies,  married  the  plaintiff,  Mr.  Ring,  and  died 
in  1829,  without  having  had  any  child  born  alive,  and  the  plaintiff  w^as 
her  administrator.  The  testator's  sons,  William  Davies  and  James 
Davies,  were  also  dead,  and  had  left  children.  Martha  Ann  West  was 
living,  and  had  children,  two  of  whom  were  born  in  the  testator's  life. 

The  questions  which  arose  upon  the  death  of  Mary  Ring  without 
children,  as  to  the  share  intended  for  her  and  her  children,  were  first, 
wdiether  the  gift  over  to  the  children  of  her  brothers  and  sisters  was 
too  remote ;  and  if  so,  then  whether  under  the  circumstances  she  took 
a  life  or  an  absolute  interest  in  that  share. 

Mr.  Pemberton  having  commenced  his  reply, 


500  RULE   AGAINST   PERPETUITIES  (Part  4 

The  Master  of  the  Rolls  [Lord  LangdalE]  said:  The  chil- 
dren, on  whose  behalf  this  case  has  been  argued,  if  they  take  anything 
must  take  it  under  that  clause  directing  a  division  between  all  the 
children  "who  should  live  to  attain  the  age  of  twenty-five  years."  It 
is  admitted,  that  a  gift  expressed  by  those  words  is  by  itself  too  re- 
mote and  void ;  but  then  it  is  said,  there  are  other  directions  in  the 
will  which  ought  to  qualify  that  construction.  The  directions  are 
first  of  all,  upon  the  death  or  second  marriage  of  the  wife  to  invest, 
&c.  the  particular  share  previously  given  to  a  daughter,  in  the  name 
of  the  trustees.  Then  it  is  said,  that  in  the  subsequent  clause,  which 
refers  to  a  period  when  the  children  are  under  twenty-five,  that  which 
was  intended  for  the  children  is  termed  "the  share"  of  the  children, 
and  that,  therefore,  the  gift  is  vested,  subject  to  be  divested ;  but  I 
consider  this  share  means  such  share  as  had  been  before  given,  that 
is,  a  share  for  such  as  should  live  to  attain  twenty-five  years,  and  this 
subsequent  clause  cannot  therefore  alter  the  effect  of  the  previous 
gift.  Next  it  is  said  to  be  a  gift  with  a  double  aspect.  I  am  of  opin- 
ion that  that  is  not  the  true  construction  of  the  clause.  In  respect  to 
the  clauses  for  maintenance  and  for  raising  money  for  advancement, 
they  are  accessories  to  that  which  is  void,  and  cannot  therefore  alter 
the  construction.  Upon  the  other  point  as  to  the  extent  of  the  gift  to 
the  daughter,  I  will  hear  a  reply. 

Mr.  Pemberton  having  replied. 

The  Master  oe  the  Rolls' said:  I  think  that  there  is  sufficient  to 
be  collected  from  the  prior  words  in  this  will  to  give  an  absolute  inter- 
est to  the  daughters ;  and  those  prior  words  are  so  connected  with 
what  follows  as  to  show  that  the  testator  intended  a  restriction  of 
that  absolute  interest ;  and  the  restriction  not  having  become  efi:ec- 
tual,  the  whole  interest  remained  according  to  the  original  gift. 


WHITEHEAD  v.  BENNETT. 

(Court  of  Chancery,  1S53.    22  L.  J.  Ch.  N.  S.  1020.) 

Samuel  Barker,  by  his  will,  dated  the  21st  of  November,  1834,  ap- 
pointed Joseph  Todd,  Edward  Loyd,  Benjamin  Braidley  and  Robert 
Bennett,  to  be  his  trustees  and  executors,  to  whom  and  their  heirs, 
executors  and  administrators  he  gave,  devised  and  bequeathed  all  his 
freehold,  leasehold  and  personal  property  upon  trust  to  sell,  when 
and  as  they  should  think  proper.  The  testator  then  gave  several  an- 
nuities and  legacies,  and  continued :  "All  the  money  arising  from  the 
sale  of  my  freehold  and  leasehold  estates,  and  the  money  arising  from 
my  personal  estate  not  consisting  of  money,  as  well  as  all  my  moneys, 
to  be  invested  foL_the  benefit  of  my  three  daughters,  Maria  White- 
lieadTwidow,  Anne  Bennett,  wife  oTRoberTT^eniiett,  and  Mary  Ben- 
nett, wife  of  Charles  Bennett,  and  the  interest  thereof  to  be  paid  to 


Ch.  G)  MODIFYING  CLAUSES  561 

each  of  my  said  daughters  ^u^ring  their  respective  natural  lives  with- 
ouTThe  control  of  their  husbands,  and  on  the  decease  of^each  of  them 
I  do  will  and  direct  that  one  half  nf  tlip  fund  or  share  from  winch  in- 
terest or  the  income  thereof  is  hereby  directed  to  be  paid  to  the  par- 
ent respectively  for  life  as  aforesaid,  shall  be  paid  to  the  children  of 
each__of^my  daughters  so  dyinpr,  equally,  at  the  age  of  twenty-one 
years.  And  it  is  my  will  that  the  injerest  of  the  other  half  shall  be 
paid_to_tJie  children  of  each  of  my  daughters  for  their  respective  lives, 
and  on  the  decease  of  my- said  grandchildrerTfespectrvely,  the  share  of 
which  they,  my  said  grandchildren,  are  only  to  receive  the  interest 
there^  for  life  as  aforesaid,  to  be  paid  to  their  children  respectively 
when  and  as  they  attain  their  respective  ages  of  twenty-one  years. 

The  testator  died,  leavfhg  TiTs  three  daughters,  Maria,  Anne  and 
Mary  surviving  him. 

Maria  and  Anne  were  still  living  and  were  defendants  to  the  suit, 
but  Mary  died  in  1837,  before  the  suit  was  instituted,  leaving  four 
children,  who  were  also  made  defendants. 

There  were  several  great-grandchildren  of  the  testator,  one  of 
whom  was^born_after  the  testator's  death. 

"The  fTrst  question  was,  whefher  or  not  the  gift  to  the  testator's 
great-grandchildren  was  void  for  remoteness.  The  next  question 
was,  whether  the  three  daughters  of  the  testator  took  alDsolute  inter- 
ests undeFtHejwill.  There  was  also  a  question  as  to  the  rights  of  Die 
children  of  Anne,  inasmuch  as  some  of  them  might  die  in  their  moth- 
er's lifetime,  but  which,  under  the  circumstances,  it  was  not  necessary 
to  decide  at  present. 

Kinde;rslEy,  V.  C.  It  seems  impossible  to  argue  that  the  limita- 
tion  to  the  great-grandchildren  is  not  void.  Indeed,  that  question  has 
scarcely  been  pressed.  There  is  no  doubt  whatever  about  this  _gen- 
eral  principle,  that  if  a  residue  or  sum  of  money  by  way  of  legacyTBe 
giveii  or  appointed  to  A.  by  a  testator  in  the  first  instance,  and  then 
there  is  a  modification  of  that  gift,  or  a  limitation  over  for  the  benefit 
of  persons,  the  issue  of  tlie  parties,  although  those  subsequent  limita- 
tions iiTav  fail,  no  doubt^  the  first  gift,  which  was  an  absolute  gift, 
would  prevail^  no  matter  whether  it  was  a  gift  or  an  appoiiitment  un- 
dcr  a  power.  The  question  here,  then,  really  is  this,  wliether  there  is 
sucha^ift  to  the  party_in  the  first  instance,  as  to  come  within  the 
princijple_and  the  authoriti€s~citecr?  Is  there  a  gitt  to  one  daughter  or 
to  each  of  the  daughters  of  a  third  part  of  the  money,  and  then  a  limi- 
tation of  the  share  thus  given  in  the  first  instance  absolutely,  in  such 
a  form  as  that  it  falls  within  the  principle,  so  as  to  make  each  of  the 
daughters  entitled  to  the  benefit  of  the  first  absolute  gift?  In  the  first 
place,  it  is  very  questionable  whether  a  direction  to  invest  for  the 
benefit  of  the  daughters  subject  to  these  limitations,  would  amount  fo 
an  absolute  gift.  It  seems  clear  that  a  gift  to  invest  for  the  benefit 
of  A.,  B.  and  C.  would  be  enough  if  it  stopped  there,  but  it  does  not 
4  Kales  Prop. — 36 


562  RULE  AGAINST  PERPETUITIES  (Part  4 

follow  that  a  mere  direction  to  invest,  followed  by  the  limitations  in 
this  will,  would  be  an  absolute  primary  gift,  but  where  there  is  a  gift 
to  invest  for  the  benefit  of  daughters,  how  can  I  say  the  testator 
meant  to  make  an  absolute  gift  to  the  daughters  as  joint  tenants,  and 
then  to  go  on  and  limit,  not  that  gift  in  joint  tenancy,  but  one  half  of 
the  third  share  to  the  children  of  one,  and  then  as  to  the  other  moiety 
of  that  third,  to  the  children  of  that  one  for  life?  Can  I  say  that  the 
testator  meant  it  to  be  an  absolute  gift  with  that  sor^of  lijnitation, 
even  if  ft  were  a  joint  tenancy?  What  Tie  meant  was,  that  this  money 
should  be  investecTfor  the  benefit  of  his  daughters,  and  then  he  directs 
how  they  are  to  derive  that  benefit.  He  does  not  express  that  he  has 
given  a  share  to  each  for  life ;  he  carefully  abstains  from  that,  and 
speaks  of  it  as  the  share,  the  income  of  which  is  given  to  the  daughter 
for  life.  Therefore,  I  think,  taking  all  the  will  together,  though  I  ad- 
mit that  a  clear  direction  to  invest  for  the  benefit  of  A.,  B.  and  C. 
would  be  an  absolute  gift  to  them,  yet  that,  in  this  case,  there  is  not 
an  absolute  gift  to  the  daughters,  and  that  the  principle  of  the  cases 
cited  is  not  impeached.  I  acted  on  this  principle  myself  in  the  case  of 
Harvey  v.  Stracey,  1  Drew.  7Z,  and  should  do  so  again  if  the  same 
circumstances  occurred ;  but  I  do  not  consider  this  case  within  the 
principle.  I  ought  to  have  observed  that  the  other  question,  as  to  the 
rights  of  the  children  of  Anne,  does  not  arise.  I  think  I  am  bound  to 
say  that  it  is  clear,  whatever  the  testator  does  not  dispose  of  goes  to 
the  heir  of  the  testator  qua  heir,  because  he  is  entitled  to  every  por- 
tion of  the  testator's  real  estate  which  is  undisposed  of.  There  was 
the  case  of  Fitch  v.  Weber,  6  Hare,  145,  where  the  testator  charged 
his  estate  for  the  benefit  of  certain  persons,  and  it  was  held  that  the 
heir  was  entitled  to  the  benefit  of  what  was  undisposed  of,  because  it 
was  part  of  the  testator's  real  estate,  and  he  is  entitled  to  it  whether 
conversion  has  taken  place  or  not. 

On  Interests  Aftee  Estates  Tail. — See  Goodwin  v.  Clark,  1  Lev.  35  (1662) : 
Nicoils  V.  Sheffield,  2  Bro.  O.  C.  215  (1787) ;  Wilkes  v.  Lion,  2  Cow.  (N.  Y.)  333 
(1S23), 


Ch.  7)  POWERS  563 

CHAPTER  VII 
POWERS 


BRISTOW  V.  BOOTHBY. 
(Court  of  Chancery,  1S26.    2  Sim.  &  S.  465.) 

By  Sir  Brooke  and  Lady  Boothby's  marriage  settlement,  certain 
freehold  estates,  the  property  of  the  lady,  were  settled  on  Sir  Brooke 
Boothby  for  life,  with  remainder  to  Lady  Boothby  for  life,  with  re- 
mainder to  trustees  for  500  years,  for  raising  portions  for  the  youn- 
ger children  of  the  marriage,  with  remainder  to  the  first  and  other 
sons  of  the  marriage  in  tail  male,  with  remainder  to  certain  other  trus- 
tees, for  a  term  of  1,000  years,  to  raise  portions  for  the  daughters  in 
default  of  issue  male  of  the  marriage,  with  remainder  to  the  first  and 
other  sons  of  Lady  Boothby,  by  any  after-taken  husband,  in  tail  male, 
with  remainder  to  the  daughters  of  Lady  Boothby,  equally,  as  tenants 
in  common  in  tail,  with  remainder  to  the  sur^-ivor  of  Sir  Brooke  and 
Lady  Boothby  in  fee:  and  it  was  provided  that,  in  case  there  should 
not  be  any  child  or  children  of  the  marriage,  or  there  being  such,  all 
of  them  should  die  without  issue,  and  Sir  Brooke  should  survive  Lady 
Boothby,  then  it  should  be  lawful  for  Lady  Boothby,  by  deed  or  will, 
whether  she  should  be  covert  or  sole,  and  notwithstanding  her  cover- 
ture, to  charge  the  premises  with  £5,000,  to  be  raised  and  paid,  after 
the  decease  of  Sir  Brooke  and  Lady  Boothby,  and  such  failure  of  is- 
sue as  aforesaid,  to  such  person  as  Lady  Boothby  should  direct,  and 
to  create  a  term  of  years  for  the  better  raising  of  such  sum  of  money. 

There  was  only  one  child  of  the  marriage,  who  died  at  the  age  of 
eight  years. ^ 

Lady  Boothby  died  in  the  lifetime  of  Sir  Brooke,  having,  by  her 
will,  executed  the  power  of  charging  the  settled  estates  with  the 
£5,000. 

The  present  suit  was  instituted,  by  a  person  claiming  under  that 
will,  against  the  heir  of  Sir  Brooke  Boothby,  for  the  purpose  of  giving 
effect  to  that  charge.    The  defendant  put  in  a  general  demurrer. 

The  Vice-Chaxcellor  [Sir  Johx  Leach].  In  that  part  of  the 
instrument  which  creates  the  power,  the  clear  expressed  intention  is, 
that  it  shall  only  take  effect  upon  a  general  failure  of  issue  of  the 
marriage;  and  there  is  no  language,  in  any  other  part  of  the  instru- 
ment, which  can  authorize  a  court  to  state  that  this  was  not  the  real 
intention  of  the  parties.     There  can  be  no  doubt  that,  if  it  had  been 

1  The  child  died  before  its  parents.    See  s.  e.  4  L.  J.  O.  S.  Ch.  S8. 


5G4  RULE  AGAINST  PERrETuiTiES  (Part  4 

pointed  out  to  the  parties  that  the  estate  was  not  Hmited  to  all  the  is- 
sue of  the  marriage,  and  that  the  power  expressed  was,  therefore,  too 
remote,  the  deed  would  have  been  altered,  and  that  the  power  and  the 
limitations  to  the  issue  would  have  been  made  to  correspond.  But 
there  is  nothing-  in  this  instrument  which  enables  me  to  say  whether 
this  would  have  been  effected  by  extending  the  limitation  to  the  sons 
in  tail  general,  or  by  directing  that  the  power  should  arise  upon  the 
failure  of  the  particular  issue  of  the  marriage,  who  were  inheritable 
under  the  settlement,  as  it  is  now  framed.  I  am  compelled,  therefore, 
to  construe  the  deed  as  I  fmd  it,  and  to  say  that  the  event  upon  which 
the  power  is  to  arise,  being  too  remote,  the  demurrer  must  be  al- 
lowed.^ 


BRAY  V.  BREE. 
(House  of  Lords,  1S34.     2  Clark  &  F.  453.) 

The  lyORD  Chancellor^  [Lord  Brougham].  My  Lords,  this 
appeal  from  a  decision  of  the  Vice-Chancellor  [Sir  Launcelot  Shad- 
well]  raised  a  question  of  considerable  nicety,  although  now,  on  a 
further  consideration  of  it,  I  entertain  very  little  doubt  as  to  what 
your  Lordships'  judgment  ought  to  be.  The  nature  of  the  case,  rath- 
er than  any  great  difficulty  that  I  experienced  in  making  up  my  mind 
to  advise  your  Lordships  on  it,  has  given  rise  to  the  intention  I  have 
of  entering  into  the  circumstances  somewhat  more  at  large  than  I 
otherwise  might  have  done  in  a  case  where  I  saw  no  reason  to  differ 
from  the  court  below. 

Upon  the  marriage  of  Broad  Malkin  and  Elizabeth  Spode,  by  a 
settlement  then  made,  the  sum  of  iSOOO,  secured  by  bond,  was  vested 
in  trustees,  subject  to  the  joint  appointment  of  the  husband  and  wife 
among  the  child  or  children  of  the  marriage.  I  need  not  state  the 
terms  of  that  power  of  appointment,  as  the  question  arises  not  upon 
that,  but  upon  the  several  appointment  of  the  wife,  she  surviving  her 
husband ;  which  was  in  exactly  the  same  terms,  word  for  word,  as  the 
power  of  appointment  given  to  the  two  jointly.  The  fund  was  to  be 
in  trust  for  all  and  every  the  child  and  children  of  Elizabeth  Spode,  by 
Broad  Malkin  to  be  begotten,  in  such  shares  and  proportions,  and  to 
be  paid  at  such  age  or  ages,  time  or  times,  and  with  such  benefit  of 
survivorship  ox  otherwise,  and  subject  to  such  conditions,  restrictions, 
and  limitations  over  the  same  (to  be  always  for  the  benefit  of  some 
one  or  more  of  such  child  or  children),  as  the  said  Elizabeth  Spode 
alone,  by  any  deed  or  deeds,  writing  or  writings,  to  be  by  her  sealed 
and  delivered  in  the  presence  of  and  attested  by  two  or  more  credible 
witnesses,  or  by  her  last  will  and  testament  in  writing,  to  be  by  her 

2  See  Laiiesborongh  v.  Fox,  Cas.  temp.  Talb.  2G2  (1733). 
»  The  opinion  only  is  given. 


Ch.  7)  POWERS  565 

signed  and  published  in  the  presence  of  and  to  be  attested  by  the  Hke 
number  of  witnesses^,  should  direct  or  appoint.  The  settlement  then 
goes  on  to  provide  for  the  case  of  there  being  neither  a  joint  appoint- 
ment by  the  husband  and  wife,  nor  a  several  appointment  by  her,  in 
execution  of  the  power ;  in  which  event  it  provides  for  the  transfer  of 
the  fund  of  £8000  to  the  child  and  children,  if  more  than  one,  share 
and  share  alike,  at  certain  ages  mentioned. 

Mrs.  Malkin  survived  her  husband,  having  but  one  child,  Saba  Eliza 
Malkin,  and  she  executed  the  power  to  that  daughter;  she,  in  efifect, 
appointed,  for  she  appointed  under  certain  limitations  "to  such  per- 
son or  persons  as  she,  the  said  Saba  Eliza  Bray,  at  any  time  or  times, 
and  from  time  to  time,  during  my  life,  or  after  my  decease,  and  not- 
withstanding her  present  or  future  coverture,  should  (in  manner 
therein  mentioned)  direct  or  appoint."  So  that  she  gave  Saba,  her 
daughter,  the  power  of  appointment;  and  in  default  of  that  execution 
of  the  power,  she  then  limited  the  fund  in  a  way  which  it  is  unneces- 
sary here  to  state.  Saba  Eliza,  who  was  married  to  Mr.  Bray,  having 
afterwards  appointed  to  her  uncle  William  Hammersley,  who  has  de- 
parted this  life  since  the  appeal  was  brought,  the  question  arises  be- 
tween her  husband  and  the  appointee's  representatives  under  Saba 
Eliza's  execution  of  the  power;  which  question  is,  whether  she  took 
an  absolute  interest  in  the  £8000  under  the  original  settlement,  in 
which  case  tlie  fund  would  belong  to  her  husband,  or  whether  she 
took  under  her  mother's  power  of  appointment.  If  she  did  not  take 
under  her  mother's  power  of  appointment,  but  took  under  the  original 
settlement,  in  that  case  cadet  questio.  If  she  did  take  under  her  moth- 
er's power  of  appointment,  the  remaining  question  is  whether  she  well 
executed  that  power  given  to  her  by  her  mother.  I  have  no  doubt 
that  there  is  a  good  execution  of  the  power  in  that  case ;  but  the  ques- 
tion raised,  as  your  Lordships  may  perceive,  is  twofold :  first,  wheth- 
er the  power  under  the  settlement  of  1805,  and  which  Elizabeth  Mal- 
kin, the  mother,  assumed  to  execute,  was  a  power  of  appointing,  in 
the  event  which  occurred,  to  one  child,  or  only  a  power  of  distribution, 
appointing  among  more  than  one  child  ;  that  is,  whether  it  was  a  pow- 
er of  appointment,  or  whether  only,  in  effect,  a  power  to  ascertain  the 
shares  which  several  individuals  should  respectively  take.  That  is  the 
principal  question,  and  the  only  one  encumbered  with  the  least  doubt : 
on  the  other,  that  is,  whether  the  power  was  well  executed,  I  have  not 
any  doubt  whatsoever.  [His  Lordship  then  addressed  himself  to  the 
question  whether  the  power  given  to  Elizabeth  Malkin  authorized 
her,  in  the  event  of  there  being  but  one  child,  to  appoint  to  that  child, 
and  he  determined  that  it  did.  This  discussion,  which  occupies  all  the 
rest  of  the  opinion  except  the  last  paragraph,  is  omitted.  That  last 
paragraph  is  as  follows  :] 

My  Lords,  it  was  said  that  Alexander  v.  Alexander,  2  Ves.  Sen. 
640,  touched  a  part  of  this  case;  Folkes  v.  Western,  9  Ves.  456,  also 
was  relied  upon  on  the  part  of  the  appellant.     Much  doubt  has  been 


566  RULE  AGAINST  PERPETUITIES  (Part  4 

thrown  upon  that  case  at  different  times ;  it  was  said  there  was  an- 
other point  in  that  case  decided,  which  had  been  wrongly  decided ; 
but  my  opinion  is,  that  Folkes  v.  Western,  as  far  as  it  appHes  to  this 
case,  is  rather  against  than  for  the  purpose  for  which  it  was  cited. 
My  Lords,  I  rely  upon  the  reasons  I  have  given  independently  of  au- 
thorities, particularly  the  first,  and  above  all  that  part  of  it  on  which 
I  have  thought  it  right  to  go  into  greater  detail ;  for  these  reasons  it 
appears  to  me  that  the  present  judgment  is  right,  and  I  shall  move 
your  Lordships  that  the  judgment  of  the  court  below  be  affirmed. 
I  do  not  propose  to  your  Lordships  to  give  any  costs  in  this  case ;  it 
appears  that  the  money  went  to  the  uncle  of  the  wife,  upon  her  death ; 
the  husband  probably  was  advised  that  there  was  a  serious  question 
whether  he  was  not  entitled  to  it ;  and  I  think,  under  these  circum- 
stances, your  Lordships  are  not  called  upon  to  give  costs. 
Judgment  affirmed,  without  costs.* 


MORGAN  V.  GRONOW. 

(Court  of  Chancery,  1873.    L.  R.  16  Eq.  1.)  s 

This  was  a  suit  to  administer  the  trusts  of  a  settlement  dated  the 
27th  of  October,  1821,  and  made  upon  the  marriage  of  Thomas  Gro- 
now  and  Mary  Ann  Lettsom,  whereby  a  sum  of  £32,500  £3  10s.  Bank 
Annuities  was  settled  upon  certain  trusts  for  the  benefit  of  Mr.  and 
Mrs.  Gronow  during  their  joint  lives  and  the  life  of  the  survivor  of 
them,  and  after  the  death  of  the  survivor,  in  trust  for  the  child  or 
children  of  the  marriage  or  any  one  or  more  of  such  children,  in  ex- 
clusion of  the  others  of  them,  as  Mr.  and  Mrs.  Gronow  should  joint- 
ly appoint,  and  in  default  of  such  appointment,  as  the  survivor  of  Mr. 
and  Mrs.  Gronow  should  by  deed  or  will  appoint,  and  in  default  for 
the  children  of  the  marriage  equally,  the  shares  of  sons  to  be  vested 
at  twenty-one,  and  those  -of  daughters  at  that  age  or  on  marriage ; 
and  there  was  the  usual  hotchpot  clause.  The  settlement  contained 
a  power  to  invest  in  land ;  and  part  of  the  Bank  Annuities  was  sold 
and  invested  under  this  power  in  the  purchase  of  two  estates,  the 
Lanharry  estate  and  the  Ash  Hall  estate;  and  the  unsold  residue  of 
the  Bank  Annuities  amounted  to  about  £14,000. 

The  joint  power  of  appointment  was  not  exercised.  Mrs.  Gronow 
died  in  1832,  leaving  her  husband  Thomas  Gronow  her  surviving. 
There  were  seven  children  of  the  marriage,  the  eldest  of  whom  was 
the  defendant  William  Lettsom  Gronow,  who  had  become  of  unsound 
mind.  Of  the  others,  it  is  only  necessary  to  name  two  daughters, 
Louisa  Lettsom  Gronow  and  Elizabeth  Lettsom  Gronow. 

4  Accord :  In  re  Teague's  Settlement,  L.  R.  10  Eq.  5G4  (1870) ;  Mifflin's 
Appeal,  121  Pa.  205,  15  Atl.  525,  1  L.  R.  A.  453,  6  Am.  St.  Rep.  781  (1888). 

5  Statement  of  tlie  case  abridged,  and  part  of  opinion  omitted. 


Ch.  7)  POWERS  567 

Subsequently  to  1832,  Thomas  Gronow  executed  divers  appoint- 
ments under  the  power  in  that  behalf  contained  in  the  settlement.  Of 
these  appointments,  three  only,  made  by  deeds  poll  dated  respectively 
the  12th  of  November,  1846,  the  5th  of  December,  1860,  and  the  20th 
of  March,  1867,  need  be  mentioned  for  tlie  purposes  of  this  report. 

By  the  deed  poll  of  the  12th  of  November,  1846,  Thomas  Gronow 
appointed,  first,  that  after  his  death  the  trustees  of  the  settlement 
should,  out  of  the  stocks,  funds,  securities,  and  property  which  might 
have  arisen  from  the  sum  of  £32,500  Bank  Annuities  originally  com- 
prised in  the  settlement,  and  which  might  then  be  subject  to  the  trusts 
thereof,  raise  such  a  sum  as  would  be  sufficient  for  the  purchase  of  a 
government  annuity  of  £300  during  the  joint  lives  of  William  Lett- 
som  Gronow  and  Catherine  Anne  his  wife,  and  the  life  of  the  survivor 
of  them,  and  should  apply  the  same  for  the  benefit  of  William  Lett- 
som  Gronow  in  manner  therein  mentioned;  and,  secondly,  that  the 
trustees  should,  after  his  death,  out  of  so  much  of  the  said  stocks, 
funds,  shares,  and  property  as  should  remain  after  answering  the  pur- 
poses aforesaid,  raise  two  several  sums  of  £7000;  and  should  as  to  one 
of  the  said  sums  of  £7000  invest  the  same  in  manner  therein  men- 
tioned, and  should  stand  possessed  of  the  investments  and  the  income 
thereof  upon  such  trusts,  to  take  effect  only  after  the  marriage  of 
Louisa  Lettsom  Gronow,  as  she  should,  by  any  deed  or  deeds  execut- 
ed either  before  or  after  her  marriage,  appoint ;  and  in  the  mean  time, 
and  until  any  such  appointment,  and  so  far  as  any  such,  if  incomplete, 
should  not  extend,  should  pay  the  income  of  such  investments  to 
Louisa  Lettsom  Gronow  during  her  life  for  her  separate  use  without 
power  of  anticipation ;  and  after  her  decease  should  hold  the  said  in- 
vestments and  the  income  thereof  upon  such  trusts  as  she  should  by 
will  appoint ;  and  should  as  to  the  other  sum  of  £7000  invest  the  same 
and  stand  possessed  thereof  upon  the  trusts  therein  mentioned,  being 
trusts  for  the  benefit  of  Elizabeth  Lettsom  Gronow  similar  to  those 
thereby  declared  for  the  benefit  of  Louisa  Lettsom  Gronow  with  re- 
spect to  the  first  sum  of  £7000. 

Louisa  Lettsom  Gronow  died  on  the  23d  of  January,  1868,  without 
having  been  married.  By  her  will  she  appointed  the  £7000  first  men- 
tioned in  the  deed  poll  of  the  12th  of  November,  1846,  to  her  sister 
Elizabeth  Lettsom  Fisher  for  her  separate  use. 

Thomas  Gronow  died  on  the  17th  of  August,  1870. 

The  cause  now  came  on  for  further  consideration.  One  of  the 
questions  was:  whether  either  of  the  sums  of  £7000  and  £7000  was 
validly  appointed. 

Lord  Selborne,  L.  C.  *  *  *  The  next  question  is  as  to  the 
interest  of  Louisa,  with  respect  to  whom  the  matters  stands  simply  in 
this  way — that  no  interest  in  any  part  of  the  capital  of  £7000  beyond 
the  mere  life  interest  is  given  to  her,  except  by  virtue  of  a  power  to 
appoint  the  capital  of  that  sum  by  will  contained  in  the  deed  of  the 
12th  of  November,  1846.     If  she  had  been  living  at  the  date  of  the 


5G8  RULE   AGAINST  PERPETUITIES  (Part  4 

instrument  creating  the  power,  I  should  have  thought  that  was  within 
the  terms  of  the  power.  She  was  not,  however,  then  Hving ;  and, 
inasmuch  as  nothing  could  vest  in  her,  or  her  representative,  or 
in  any  one  else,  under  an  exercise  of  the  power,  except  at  a  time 
which  might  be  beyond  the  limits  allowed  by  the  rule  as  to  perpetui- 
ties, not  only  WoUaston  v.  King,  Law  Rep.  8  Eq.  165,  but  principle, 
obliges  me  to  hold,  however  reluctantly,  that  that  is  void.  It  is  the 
same  thing  as  if  there  had  been  a  gift  to  her  for  her  own  benefit 
dependent  upon  a  condition  that  could  only  be  ascertamed  at  the 
moment  of  her  death,  which  would  clearly  be  beyond  the  permitted 
limit  of  time.  If  there  had  been  a  gift  in  the  deed  to  her  when  she 
attained  the  age  of  twenty-five,  to  vest  then  and  not  earlier,  it  would 
have  been  too  remote;  a  fortiori,  such  a  gift  as  this,  depending  up- 
on the  exercise  of  the  power,  must  be  too  remote  also. 

With  regard  to  the  i/OOO  given  to  Elizabeth,  if  the  matter  had  rest- 
ed upon  the  original  deed  I  should  have  been  of  the  same  opinion,  be- 
cause marriage  in  the  case  of  an  unmarried'  and  unborn  child  is  an 
event  as  uncertain  with  regard  to  the  time  at  which  it  may  take  place, 
if  it  ever  does  take  place,  with  reference  to  lives  in  being,  as  death  is ; 
and  the  case  is  not  one  in  which  there  is  any  gift  of  the  absolute  in- 
terest in  the  capital  to  her  independently  of  the  exercise  of  the  power, 
or  of  the  other  power  to  be  exercised  by  will  only.  Nothing  is  given 
independently  of  those  powers  and  the  exercise  of  them  except  a  life 
interest. 

I  cannot  accede  to  the  view  that  the  cases,  of  which  White  v.  St. 
Barbe,  1  V.  &  B.  399,  and  Langston  v.  Blackmore,  Amb.  289,  are  ex- 
amples, in  the  least  degree  touch  such  an  instrument  as  this.  Lang- 
ston V.  Blackmore,  which  is  one  of  the  strongest  cases  in  its  circum- 
stances, was,  after  all,  only  an  example  of  exactly  the  same  principle 
as  White  v.  St.  Barbe ;  that  is  to  say,  that  when  there  is  an  instrument 
which  is  made  with  the  concurrence  of  the  object  of  the  power  to 
whom  the  whole  might  be  validly  appointed  (which  was  the  case  in 
Langston  v.  Blackmore),  if  the  instrument  goes  on  to  settle  the  fund, 
as  there,  in  strict  settlement  upon  the  object  of  the  power  for  life, 
with  remainder  to  such  wife  as  that  object  of  the  power  should  mar- 
ry, remainder  to  the  children  of  that  object  of  the  power,  and,  for 
want  of  such  children,  over  to  other  persons,  so  as  to  make  it  a  strict 
settlement,  out  and  out,  which  would  be  absolutely  operative,  and 
leave  nothing  to  be  done  if  they  were  all  objects  of  the  power,  it  shall 
be  held  to  be  in  substance,  if  the  facts  warrant  it,  the  object  of  the 
power  concurring,  an  appointment  absolutely  to  the  object  of  the 
power  and  a  settlement  by  him  on  those  particular  limitations.  Here 
there  is  no  appointment  to  the  object  of  the  power  of  the  capital  at 
all,  unless  it  is  to  be  got  at  through  the  medium  of  these  powers  of 
appointment ;  nor  is  there  any  settlement,  except  by  the  same  exercise 
of  those  future  powers  of  appointment,  upon  any  one  whatever.  The 
whole  thing  remains  in  abeyance,  and  can  vest  in  nobody  till  those 


Ch.  7)  POWERS  5G9 

powers  are  exercised,  the  one  of  which  is  dependent,  not  upon  the 
mere  will  of  the  person  to  whom  it  is  given,  but  upon  the  future  un- 
certain event  of  marriage,  uncertain  as  to  the  fact  and  uncertain  as 
to  the  time,  and  the  other  upon  the  equally  uncertain  event,  as  to 
time,  of  death.® 

At  first  my  impression  was  that  nothing  was  shown  to  have  taken 
place  afterwards  which  would  mend  the  case  in  favor  of  Elizabeth ; 
but  more  careful  attention  to  the  particular  terms  of  the  subsequent 
document  has  altered  that  impression,  and  I  now  think,  although  the 
original  appointment  was  bad,  except  as  to  the  life  estate,  as  far  as 
Elizabeth  was  concerned,  that  the  subsequent  deed  of  the  5th  of  De- 
cember, 1860,  followed  up,  I  think,  ten  years  afterwards  by  the  deed 
of  the  21st  of  October,  1870,  have  had  the  effect  of  validly  vesting  that 
i7000  in  the  trustees  of  that  deed  of  the  21st  of  October,  1870.  [Bal- 
ance of  opinion  relating  to  this  point  omitted.] 


WILKINSON  v.  DUNCAN. 

(Court  of  Chancery,  1S61.     .30  Beav.  111.) 

George  Wilkinson,  the  uncle,  died  in  1836,  having  by  his  wall  be- 
queathed the  residue  of  his  personal  estate,  and  the  produce  of  real  es- 
tate to  trustees,  upon  trust  for  his  nephew  George  Wilkinson  for  his 
life,  and  from  and  after  his  decease  upon  the  following  trusts  for  his 
children : 

"Upon  trust  for  all  and  every,  or  such  one  or  more  exclusively  of 
the  others  or  other  of  the  children  or  child  of  George  Wilkinson,  in 
such  manner  and  form,  and  if  more  than  one,  in  such  parts,  shares  and 
proportions,  and  with  such  limitations  over  and  substitutions  in  favor 
of  any  one  or  more  of  the  others  of  the  said  children,  and  to  vest  and 
be  payable  and  paid,  transferred  and  assigned,  at  such  time  or  times, 
age  or  ages,  and  upon  such  contingencies,  and  under  and  subject  to 
such  directions  and  regulations  for  maintenance,  education  or  advance- 
ment, as  George  Wilkinson"  by  deed  or  will  "shall  from  time  to  time 
direct  and  appoint;  and  in  default  of  and  subject  to  such  direction  or 
appointment,  and  so  far  as  any  such,  if  incomplete,  shall  not  extend, 
upon  trust  for  all  and  every  the  children  and  child  of  the  said  George 
Wilkinson,  who  being  a  son  or  sons  shall  live  to  attain  the  age  of 
twenty-one  years,  or  being  a  daughter  or  daughters  shall  attain  that 
age  or  be  married,  to  be  equally  divided  between  such  children,  if  more 
than  one,  in  equal  shares  and  proportions,  as  tenants  in  common." 

6  So  where  A.,  under  a  marriage  settlement  having  power  to  appoint  a 
fund  in  favor  of  the  children  of  the  marriage,  by  her  will  and  execution 
of  the  power  appointed  to  C.  for  life,  with  remainder  to  .such  persons  as  C. 
should  by  will  appoint,  the  power  in  C.  was  void  for  remoteness.  WoUaston 
V.  King,  L.  R.  S  Eq.  1(j5  ;    Tredennick  v.  Tredennick,  L.  R.  [1900]  1  I.  R.  354. 


570  RULE  AGAINST  PERPETUITIES  TPart  4 

The  will  contained  no  hotchpot  clause. 

George  Wilkinson  the  nephew  made  his  will  in  November,  1858, 
whereby,  after  reciting  his  uncle's  will,  and  the  power  of  appointment 
over  his  residuary  estate  therein  contained,  and  that  the  residuary  es- 
tate consisted  of  il4,v^00  more  or  less,  he  proceeded  as  follows: 

"Now  in  exercise  of  the  same  power  and  of  every  other  power  so 
enabling  me,  I  do  hereby  direct  and  appoint,  that  the  trustees  for  the 
time  being  of  the  said  will  shall,  after  my  decease,  stand  possessed  of 
the  said  residuary  estate,  upon  trust,  after  my  decease,  as  to  the  in- 
come thereof,  and  until  the  portions  of  my  children  in  the  capital  shall 
become  payable  and  divisible  as  hereinafter  directed,  to  pay  the  same 
to  the  trustees  of  my  will,  for  the  maintenance,  education  or  advance- 
ment of  my  children,  in  such  manner  as  they,  in  their  uncontrolled  di- 
rection, shall  think  most  beneficial  to  them,  such  application  of  the  in- 
come to  cease,  as  to  each  child,  as  and  when  he  or  she  shall  become 
entitled  to  his  or  her  portion  of  capital.  And  as  to  the  capital  of  such 
residuary  estate,  upon  trust  for  the  benefit  of  my  children  in  the  man- 
ner hereinafter  mentioned,  viz.,  to  pay  £2,000  to  each  of  my  daughters, 
as  and  when  they  shall  respectively  attain  twenty-four  years  of  age ; 
and  in  the  event  of  my  daughters  dying  under  twenty-four  years  of 
age  then  to  pay  the  said  sum  of  i2,000  to  her  surviving  sister  (as  the 
case  may  be).  And  as  to  the  residue  of  such  capital,  to  divide  the  same 
between  my  sons  equally  (if  more  than  one)  as  and  when  they  shall 
respectively  attain  twenty-four  years  of  age,  and  if  only  one  then  the 
whole  to  such  only  son. 

"And  if  my  son  George  shall  succeed  me  in  my  business,  and  on  this 
condition  only,  then  his  share  shall  be  paid  to  him  at  twenty-one  years 
of  age,  instead  of  twenty-four,  but  not  otherwise.  And  in  tlie  event  of 
no  son  attaining  twenty-four  years  of  age,  and  in  the  event  of  the 
above  provision  for  my  daughters  taking  efifect,  then  to  divide  the  same 
between  them,  as  soon  as  and  when  they  shall  severally  attain  twenty- 
four  years  of  age." 

George  Wilkinson,  the  nephew,  died  in  November,  1859,  leaving  ten 
children,  two  of  whom  were  under  the  age  of  three  years  at  his  death. 

A  question  had  arisen  whether  the  appointment  to  the  children  at 
twenty-four  was  to  any  extent  invalid  on  the  ground  of  remoteness. . 

The  Master  of  the  Rolls  [Sir  John  Romilly].  I  will  state  the 
view  I  take,  and  I  will  look  at  the  authorities,  and  hear  the  defendants 
if  necessary, 

I  think  that  the  bequest  is  distinct  from  that  in  Leake  v.  Robinson, 
2  Mer.  363,  and  that  Sir  William  Page  Wood  correctly  states  the  prin- 
ciples in  Cattlin  v.  Brown,  11  Hare,  Zll .  He  states  the  5th  rule  thus: 
"Where  there  is  a  gift  or  devise  of  a  given  sum  of  money  or  prop- 
erty to  each  member  of  a  class,  and  the  gift  to  each  is  wholly  inde- 
pendent of  the  same  or  similar  gift  to  every  other  member  of  the  class, 
and  cannot  be  augmented  or  diminished,  whatever  be  the  number  of 
the  other  members,  then  the  gift  may  be  good  as  to  those  within  the 


Ch.  7)  POWERS  571 

limits  allowed  by  law.  This  was  settled  in  the  case  of  Storrs  v.  Ben- 
bow,  2  Myl.  &  K.  46." 

That  appears  to  me  to  be  a  very  accurate  statement  of  the  law.  The 
distinction  between  the  case  of  Leake  v.  Robinson  and  the  present  is 
this :  In  Leake  v.  Robinson  the  property  was  given  to  A.  for  life,  and 
afterwards  to  pay  to  such  of  his  children  as  should  attain  twenty-five. 

It  was  therefore  impossible  to  ascertain  the  class  until  it  was  known 
how  many  children  attained  twenty-five,  and  consequently  the  period 
for  ascertaining  the  class  was  beyond  the  time  allowed  by  the  rule  of 
law,  and  too  remote.  But  if  the  testator  had  said,  that  upon  the  death 
of  the  tenant  for  life,  the  estate  should  be  divided  into  as  many  shares 
as  the  tenant  for  life  had  children,  and  that  one  share  should  be  vested 
in  each  child  on  his  attaining  twenty-five,  then  I  apprehend  the  bequest 
would  be  good  as  to  those  children  who  were  of  such  an  age  at  the 
testator's  death  that  they  must  necessarily  attain  twenty-five  within 
twenty-one  years  from  the  death  of  the  tenant  for  life. 

If  the  testator  here  had  said,  "and  as  to  the  capital  of  such  residuary 
fund,  to  pay  it  to  my  daughters  when  and  as  they  shall  attain  the  age 
of  twenty-four  years,"  then  it  would  come  within  the  case  of  Leake  v. 
Robinson,  but  here  the  terms  of  the  execution  of  the  power  are,  "as 
to  the  capital  of  such  residuary  estate  upon  trust  for  the  benefit  of  my 
children"  [that  is,  sons  and  daughters]  "in  the  manner  hereinafter 
mentioned,  viz.,  to  pay  i2,0(X)  to  each  of  my  daughters  as  and  when 
they  shall  respectively  attain  the  age  of  twenty-four  years." 

Upon  the  death  of  the  second  testator,  who  executed  the  power,  as 
many  sums  of  £2,000  were  to  be  ascertained  as  he  had  daughters,  and 
with  respect  to  those  who  are  within  the  period  or  limit  of  the  rule 
against  perpetuity,  that  is,  with  respect  to  those  who  had  attained  the 
age  of  three  years  at  their  father's  death,  why  should  not  their  lega- 
cies of  £2,000  each  be  paid  to  them,  why  are  they  to  be  affected  by  the 
invalidity  of  the  gift  to  the  others? 

The  circumstance  that  there  is  a  gift  over  in  case  a  daughter  should 
die  under  twenty-four  does  not  affect  the  matter. 

What  I  stated  in  Seaman  v.  Wood,  22  Beav.  591,  was  this:  Where 
there  is  a  class  to  be  ascertained,  which  consists  partly  of  persons  who 
are  clearly  within  the  limits  allowed  by  law,  and  partly  of  those  who 
are  not  within  such  limits,  then,  as  you  cannot  ascertain  the  members 
of  the  class  until  after  the  period  permitted  by  the  doctrine  against 
perpetuities,  the  whole  gift  is  void,  for  you  do  not  know,  and  cannot 
ascertain,  within  the  proper  limit  of  time,  what  each  person  is  to  take. 

I  intended  to  draw  that  distinction  in  Webster  v.  Boddington,  26 
Beav.  128,  and  that  was  the  distinction  taken  in  Griffith  v.  Pownall, 
13  Sim.  393,  and  by  Vice-Chancellor  Wood  in  Cattlin  v.  Brown,  11 
Hare,  372. 

The  view  I  take  of  the  case  generally  is  that  which  I  have  stated, 
viz.,  where  the  share  of  each  person  is  ascertained,  the  gifts  to  those 
who  happen  to  be  within  the  limits  of  the  rule  against  perpetuity  may 


572  RULE   AGAINST   TERPETUITIES  (Part  4 

be  good  as  to  them,  though  the  gifts  be  invalid  as  to  the  others  who 
are  beyond  that  limit,  because  the  number  and  amount  of  the  shares 
are  ascertained  at  the  proper  period  and  within  the  proper  limit  of 
time. 

The  Master  of  the  Rolls.  I  have  looked  at  the  cases,  but  I  do 
not  think  I  can  add  anything  to  wdiat  I  stated  yesterday.  I  think  that 
the  principle  of  the  case  is  clearly  laid  down  by  Vice-Chancellor  Sir 
William  Page  Wood  in  the  fifth  proposition  which  he  states  in  Cattlin 
V.  Brown. 

I  think  this  will  afford  instances  of  both  the  rules  stated  by  the  \'^ice- 
Chancellor  Wood.  In  the  gift  to  the  daughters  a  sum  is  specifically 
given  to  each,  which  is  not  dependent  on  the  gift  to  the  others,  and 
consequently  those  will  take  who  can  take  it  within  the  time  allowed  by 
the  law  against  perpetuities.  With  respect  to  the  gift  to  the  sons,  it 
illustrates  the  other  rule.  I  am  of  opinion  that  it  is  a  gift  to  a  class 
which  cannot  be  ascertained  until  all  the  members  of  it  shall  have  at- 
tained twenty-four,  and  therefore,  wath  respect  to  them,  the  appoint- 
ment of  the  residue  is  wholly  void  for  remoteness.  With  respect  to 
the  daughters,  as  the  number  of  sums  of  ;£2,000  were  ascertained  at  the 
death  of  the  nephew,  I  think  that  those  wdio  attain  their  age  of  twenty- 
four  within  the  period  of  twenty-one  years  from  the  death  of  the  neph- 
ew are  entitled  to  their  shares,  and  the  residue  wall  go  as  unappointed» 

I  will  make  a  declaration  to  that  effect.'^ 


In  re  POWELL'S  TRUSTS. 
(Court  of  Chancery,  1S69.     39  L.  J.  Ch.  N.  S.  188.) 

This  was  a  petition  by  Mrs.  Littlehales,  for  payment  out  of  court  of 
certain  sums  of  stock,  subject  to  the  trusts  of  the  will  of  her  grand- 
father, James  Powell. 

James  Powell,  by  his  will  dated  December  6th,  1830,  gave  all  his 
moneys,  securities  for  money,  stocks  and  other  funds,  to  trustees  upon 
trust,  after  the  deaths  of  his  wife,  Mary  Powell,  and  her  sister,  Hannah 
Male,  to  stand  possessed  of  a  sum  of  £2,000  Consols,  in  trust,  to  pay 
the  interest  and  dividends  thereof  to  the  testator's  daughter  Hannah, 
the  wife  of  John  Hall,  for  her  life,  and  after  her  death  "in  trust  to  and 
for  such  person  or  persons  as  his  daughter,  Hannah  Hall,  in  and  by 
her  last  will  and  testament,  should  direct  or  appoint ;  and  in  default 
of  such  direction  or  limitation,  in  trust  for  all  and  every  such  child  or 
children  of  his  said  daughter  as  therein  mentioned,  share  and  share 
alike  if  more  than  one,  and  if  there  should  be  only  one  such  child,  in 
trust  for  such  only  child ;  and  in  default  of  any  child  or  children,  then 
to  her  own  right  heirs ;   and  as  to  a  further  sum  of  £3,000  stock,  upon 

7  Accord:  In  re  Thompson,  L.  R.  [1900]  2  Ch.  199;  Gray,  Rule  Against 
Perpetuities  (od  Ed.)  §  32oC  et  aeq. 


Ch.  7)  POWERS  573 

trust  that  the  said  trustees  should,  after  the  death  of  testator's  wife, 
stand  possessed  thereof  upon  like  trusts  as  the  said  sum  of  £2.000." 
The  said  testator  died  in  February,  1831.  In  January,  1860,  the  tes- 
tator's wife  and  her  sister,  both  being  then  dead,  the  trustees  of  the 
testator's  will  paid  into  court,  under  the  Trustee  Relief  Act,  a  sum  of 
£6,930  Consols,  as  representing^  (less  certain  deductions)  the  said  two 
sums  of  £2.000  and  £3,000  stock  bequeathed  by  the  testator's  will  as 
aforesaid,  together  with  a  further  sum  of  £2,000  stock  bequeathed  by 
his  will  to  Hannah  Hall  for  her  life,  with  power  to  her  to  appoint  the 
same  by  deed.  The  stock  representing  such  last-mentioned  sum  had 
been  paid  out  by  an  order  of  court,  and  there  was  left  a  sum  of  £4,936 
13s.  4d.  Consols,  representing  the  said  two  bequests  of  £2,000  and 
£3,000  standing  in  court  "ex  parte  the  legacies  given  to  Hannah  Hall 
for  life,  with  remainders  over." 

Hannah  Hall  duly  made  her  will,  dated  December  lltli,  1868, 
whereby  she  appointed  Edmund  Stainton  Day  and  John  Frederick 
Hall  the  executors  and  trustees  thereof,  and  after  certain  specific  and 
pecuniary  legacies,  and  a  bequest  of  her  furniture  and  other  household 
effects  to  her  daughter,  Sarah  Maria  Littlehales,  she  proceeded  as 
follows :  "As  to  all  the  rest,  residue  and  remainder  of  my  estate  and 
efTects,  I  give,  devise  and  bequeath  the  same  unto  my  said  executors, 
upon  trust :  in  the  first  place,  to  convert  the  same,  or  such  part  there- 
of as  they  shall  think  fit,  into  money,  and  to  invest  the  proceeds  to 
arise  from  such  sale  in  their  joint  names  in  government  securities,  and 
to  pay  the  annual  income  thereof,  and  also  of  the  rest  of  my  estate, 
unto  my  said  daughter,  during  her  life,  for  her  sole  and  separate  use 
and  independent  of  her  present  and  any  future  husband ;  and  from  and 
after  her  decease,  upon  trust,  to  stand  possessed  of  the  same  in  trust 
for  all  and  every  the  children  of  my  said  daughter,  who  being  a  son 
or  sons,  shall  live  to  attain  twenty-one,  or  being  a  daughter  or  daugh- 
ters, shall  live  to  attain  that  age,  or  marry  under  that  age  ;  and  if  there 
shall  be  but  one  who  shall  live  to  attain  that  age,  or  marry  as  afore- 
said, then  in  trust  for  such  one  child  absolutely."  The  said  will  also 
contained  powers  of  maintenance  and  advancement  in  favor  of  Mrs. 
Lfttlehales'  children. 

The  will  of  Hannah  Hall  contained  no  mention  of  or  reference  to 
the  will  of  her  grandfather,  James  Powell,  or  her  power  of  appointment 
thereunder.  Hannah  Hall  died  July  15th,  1869,  and  her  will  was  duly 
proved.  She  had  issue  one  child,  viz.,  the  petitioner,  Sarah  Maria 
Littlehales,  born  after  the  death  of  the  testator,  James  Powell,  and 
now  the  wife  of  Frederick  Littlehales.  !Mrs.  Littlehales  had  six  chil- 
dren, infants.  There  was  no  settlement  or  agreement  for  a  settlement 
on  her  marriage  affecting  this  fund.  She  now  presented  this  petition 
for  payment  of  the  said  sum  of  £4,936  13s.  4d.  Consols  to  her  husband. 

^Ir.  Speed,  for  the  petitioner. 
'  JamKS,  V.  C,  said,  he  was  clearly  of  opinion  that  the  power  of  ap- 
pointment given  to  Mrs.  Hall  by  her  father's  will,  fell  within  the  27th 


574  RULE  AGAINST  PERPETUITIES  (Part  4 

section  of  the  Wills  Act,  so  that  the  general  bequest  contained  in  Mrs. 
Hall's  will  operated  as  a  valid  execution  of  such  power.  But  the  gen- 
eral power  vested  in  Mrs.  Hall  of  appointing  by  her  will  the  remainder 
in  the  fund,  after  the  termination  of  her  life  interest,  being  exercisable 
only  on  her  death,  was  not  equivalent  to  her  having  the  absolute  own- 
ership of  the  fund  which  was  tied  up  for  the  whole  of  her  life.  The 
interests  in  the  fund  purported  to  be  conferred  by  INIrs.  Hall's  will  on 
Mrs.  Littlehales  and  her  children,  must  therefore  be  taken  to  be  in- 
terests created  by  the  will  of  James  Powell.  Hence  the  rule  against 
perpetuities  must  apply  to  this  case,  and  the  gift  to  the  children  of 
Mrs.  Littlehales  was  void  for  remoteness.  Mrs.  Littlehales  was  en- 
titled to  the  fund,  and  (subject  to  her  assent  on  being  examined)  the 
order  would  be  made  for  payment  of  it  out  to  her  husband.  The  costs 
of  all  parties  to  come  out  of  the  fund.^ 


ROUS  v.  JACKSON. 
(Chancery  Division,  1885.    29  Ch.  Div.  521.) 

By  a  settlement  dated  the  12th  of  July,  1800,  made  on  the  marriage 
of  John  Abdy  and  Caroline  Hatch,  certain  sums  of  bank  stock  and 
bank  annuities  were  assigned  to  trustees  upon  trust  to  pay  the  income 
to  John  Abdy  during  the  joint  lives  of  John  Abdy  and  Caroline  Hatch, 
and  after  his  decease  to  paylhelncome  to  Caroline  Hatch,  and  after 
her  decease  upon  trusts  in  favor  of  the  children  of  the  marriage  as 
therein  mentioned,  with  a  proviso  that  if  there  should  not  be  any 
child  or  children  of  the  marriage  (which  event  happened),  then  the 
trustees  should  stand  possessed  of  the  bank  stock  and  bank  annuities 
upon  trust,  if  Caroline  Hatch  survived  John  Abdy,  to  transfer  the 
same  to  her  executors,  administrators  or  assigns,  but  that  if  she 
should  die  in  his  lifetime  (which  event  happened),  then  upon  trust  to 
transfer  the  same  to  such  person  or  persons,  upon  such  trusts,  and  for 
such  intents  and  purposes,  and  subject  to  such  provisos  and  declara- 
tions as  she  should  by  her  will,  notwithstanding  her  intended  cover- 
ture, direct  or  appoint,  and  in  default  thereof,  or  in  case  any  such  di- 
rection or  appointment  should  be  made  which  should  not  be  a  complete 
and  entire  disposition  of  the  whole  of  the  bank  stock  and  bank  annui- 
ties, then  upon  trust  that  the  trustees  should  stand  possessed  of  the 
same,  or  so  much  thereof  as  should  remain  unappointed  or  undisposed 
of,  in  trust  for  John  Abdy,  his  executors,  administrators  or  assigns, 
and  should  transfer  the  same  to  him  or  them  accordingly. 

By  her  last  will,  dated  the  7th  of  April,  1838,  Caroline  Hatch,  then 
Caroline  Abdy,  in  pursuance  and  by  virtue  of  the  power  and  authority 

8  See  Genet  v.  Hunt,  113  N.  Y.  158,  21  N.  E.  91 ;  Lawrence's  Estate,  136 
Pa.  354,  20  Atl.  521,  11  L.  R.  A.  85.  20  Am.  St.  Rep.  925;  Gray,  Rule 
Against  Perpetuities  (Sd  Ed.)  §§  948-969. 


Ch.  7)  POWERS  575 

given  and  reserved  to  her  in  and  by  the  above  indenture  of  settlement, 
and  of  all  other  powers  and  authorities  in  her  vested,  or  her  thereto 
enabling-,  and  in  exercise  and  execution  thereof,  directed  and  appoint- 
ed that  the  trustees  of  the  settlement  should  as  soon  as  might  be  after 
her  decease  transfer  the  funds  then  subject  to  the  trusts  of  the  settle- 
ment into  the  names  of  Thomas  Mills  and  Charles  Druce,  to  whom 
the  testatrix  also  appointed  and  gave  all  the  moneys,  stocks  and  funds 
which  she  had  power  to  dispose  of  by  virtue  of  the  settlement,  upon 
trust  to  lay  out  and  invest  the  same  in  the  purchase  of  land  to  be  con- 
veyed to  the  use  of  John  Abdy  for  life,  and  after  his  decease  to,  for, 
and  upon  the  uses,  trusts,  intents  and  purposes,  and  with,  under,  and 
subject  to  the  powers,  provisos,  declarations  and  agreements  limited, 
expressed,  declared  and  contained  in  and  by  an  indenture  of  settlement 
bearing  even  date  with,  but  executed  before,  the  execution  of  that  her 
will  (of  which  settlement  the  said  Thomas  Mills  and  Charles  Druce 
were  also  trustees),  and  the  testatrix  appointed  the  said  Thomas  Mills, 
Charles  Druce,  and  her  husband,  trustees  and  executors  of  his  will. 

By  the  indenture  so  referred  to  in  the  will  of  Caroline  Abdy,  and 
dated  the  7th  of  April,  1838,  it  was  agreed  and  declared  that  the  here- 
ditaments and  premises  thereby  appointed  should  from  and  after  the 
decease  and  failure  of  issue  of  Caroline  Abdy  (but  subject  to  the 
prior  uses  and  estates  therein  mentioned),  go,  remain  and  be  to  the 
use  of  James  Mills  and  his  assigns  during  his  life,  and  after  his  decease 
to  the  use  of  his  issue  in  tail  as  therein  mentioned,  and  in  default  of 
such  issue  to  the  use  of  Christopher  John  Mills  for  his  life,  and  after 
his  decease  to  the  use  of  the  plaintifif  William  John  Rous  for  life,  and 
after  his  decease  to  the  use  of  his  first  and  other  sons  in  tail  male,  with 
divers  remainders  over. 

Caroline  Abdy  died  on  the  4th  of  May,  1838,  without  ever  having 
had  any  issue,  and  her  will  was  proved  by  her  husband  and  the  other 
two  executors,  and  the  funds  then  subject  to  the  trusts  of  the  inden- 
ture of  the  12th  of  July,  1800,  were  transferred  into  the  names  of  the 
said  Thomas  Mills  and  Charles  Druce. 

John  Abdy  died  on  the  1st  of  April,  1840,  having  by  his  will  given 
all  the  residue  of  his  personal  estate  and  efifects  to  Thomas  Abdy  for 
his  own  use  and  benefit,  who  died  on  the  20th  of  July,  1877,  having  by 
his  will  appointed  the  defendants  Cartmell  Harrison  and  James  Crofts 
Ingram  executors  thereof. 

Christopher  John  Mills  died  on  the  4th  of  October,  1855. 

James  Mills  died  on  the  18th  of  December,  1883,  without  ever  hav- 
ing had  any  issue.  James  Mills  and  the  plaintiflf  were  both  born  sub- 
sequently to  the  execution  of  the  indenture  of  the  12th  of  July,  1800. 

The  trust  funds  appointed  by  the  will  of  Caroline  Abdy  were  never 
invested  in  the  purchase  of  land  pursuant  to  the  direction  in  that  be- 
half in  her  will,  and  were  when  this  action  was  commenced  standing 
in  the  name  of  the  trustees  of  her  will. 


576  RULE   AGAINST  PERPETUITIES  (Part  4 

The  plaintifif  claimed  a  declaration  that  the  will  of  Caroline  E.  H. 
Abdv  operated  as  a  valid  execution  of  the  power  of  appointment  re- 
served to  her  by  the  indenture  of  the  12th  of  July,  1880,  and  that  the 
trust  funds  subject  to  the  indenture  of  settlement  were  validly  appoint- 
ed, and  that  the  plaintiff  was  entitled  to  the  income  thereof. 

ChiTty,  J.  (after  stating  the  facts  of  the  case  proceeded  as  follows) : 
Mrs.  Abdy  by  her  will  expressly  exercised  the  power  of  appointment 
given  her  by  the  settlement,  directing  the  trustees  of  that  settlement 
to  transfer  the  funds  comprised  in  the  power  to  two  trustees  named  by 
her,  to  whom  she  also  appointed  and  gave  "all  other  moneys,  stocks, 
and  funds  of  which  she  had  power  to  dispose  by  virtue  of  the  said  in- 
denture of  settlement  or  otherwise  howsoever"  upon  the  trusts  and  to 
and  for  the  intents  and  purposes  therein  mentioned. 

The  principle  laid  down  by  Wilkinson  v.  Schneider,  Law  Rep.  9  Eq. 
423,  is  firmly  established,  that  under  a  general  testamentary  power_of_ 
appointment  such  as  this  the  trustees  of  the  settlem^nr  creaITrig"the 
power  are  bound  to  hand  over  the  trust  funds  in  their  haiTds  to  the 
persons  named  by  the  donee  of  the  powef,~and''tTi'efefc)fe  the  trusts  in 
default  of  appointment  cannot  arise.  ~      ~ 

In  the  case  of  the  exercise  of  such  a  power  by  a  man  the  rule  is 
clear.  In  the  case  of  a  married  woman,  which  is  the  case  before  me, 
the  late  Master  of  the  Rolls  has  decided  in  the  case  of  In  re  Pinede's 
Settlement,  12  Ch.  D.  667,  that  the  married  woman  can  make  the  fund 
her  own  by  exercising  the  power,  and  in  this  case  if  all  the  trusts  lim- 
ited by  Mrs.  Abdy  had  failed,  I  have  no  doubt  that  her  husband  would 
be  entitled  to  take  the  property  by  virtue  of  his  marital  right. 

On  the  part  of  the  representatives  of  the  husband  it  is  argued  that 
the  trusts  of  the  will  and  settlement  of  even  date  are  to  be  incorpo- 
rated with  and  read  as  part  of  the  settlement  of  1800,  and  that  then, 
according  to  the  decision  of  James,  V.  C,  in  In  re  Powell's  Trusts,  39 
L.  J.  (Ch.)  188,  they  are  invalid  as  contravening  the  rule  against  perpe- 
tuities :  that  is  so,  and  the  question  therefore  arises  whether  the  de- 
cision in  In  re  Powell's  Trusts  is  consistent  with  the  course  of  authori- 
ties. James,  V.  C,  in  that  case  decided  that  such  a  general  testamen- 
tary power  of  appoiritment  given  to  a  married  woman  is  not  equivalent 
to  ownership,  so  that  as  regards  the  rule  against  perpetuities  the  in- 
terest arising  under  the  execution  of  the  power  by  her  will  must  be 
considered  as  created  under  the  deed  or  will  conferring  the  power. 

This  decision  is  reported  in  the  Law  Journal  reports,  and  also  in 
the  Weekly  Reporter,  but  it  is  not  reported  in  the  Law  Reports,  but  I 
am  not  entitled  to  say  on  that  account  that  it  is  not  properly  reported, 
or  an  authority  to  which  I  need  pay  no  attention.  The  case  is  report- 
ed, and  I  must  attend  to  it  and  deal  with  it  as  best  I  can.  I  think  the 
Vice-Chancellor  in  that  case  fell  into  an  error.  I  can  find  no  distinc- 
tion between  the  case  of  capacity  to  alienate  existing  by  reason  of  a 
general  power  and  general  capacity  to  alienate  property.    For  the  pur- 


Ch.  7)  POWERS  577 

poses  of  the  power,  the  person  exercising  it,  whether  a  man  or  a  mar- 
ried woman,  stands  in  exactly  the  same  position  with  reference  to  the 
disposition  purported  to  be  made  under  the  power. 

Mr.  Butler  and  Lord  St.  Leonards  both  treat  a  general  power  of 
appointment  as  outside  the  rule  against  perpetuities.  Lord  St.  Leon- 
ards in  his  work  on  Powers  says  (8th  ed.,  p.  394):  "A  general  power 
is,  in  regard  to  the  estates  which  may  be  created  by  force  of  it,  tanta- 
mount to  a  limitation  in  fee,  not  merely  because  it  enables  the  donee 
to  limit  a  fee,  which  a  particular  power  may  also  do,  but  because  it 
enables  him  to  give  the  fee  to  whom  he  pleases."  He  draws  no  dis- 
tinction between  a  power  exercisable  by  deed  or  will  or  by  will  only, 
and  it  appears  to  me  to  make  no  difference  by  what  instrument  the 
power  is  made  exercisable.  Lord  St.  Leonards  also  says.  Ibid.,  p. 
395 :  "Therefore,  whatever  estates  may  be  created  by  a  man  seised  in 
fee  may  equally  be  created  under  a  general  power  of  appointment ; 
and  the  period  for  the  commencement  of  the  limitations  in  point  of 
perpefurfy,'~ls  the  time  of  the  execution  of  the  power,  and  not  of  the 
creation  of  it."  He  goes  on  to  quote  Mr.  Powell's  note  to  Fearne's 
Executory  Devises  (page  5),  in  favor  of  the  contrary  opinion,  and  in 
the  result  states  that  there  appears  to  be  no  solid  principle  upon  which 
the  distinction  taken  by  Mr.  Powell  can  be  supported,  because  the 
question  whether  the  limitations  are  good  does  not  depend  on  the  fact 
that  the  donee  of  the  power  has  also  the  fee  in  default  of  appointment, 
and  that  you  can  create  the  same  estates  and  limitations  under  a  gen- 
eral power  of  appointment  as  you  can  where  you  have  the  fee. 

There  are  remarks  of  other  text-writers  to  the  same  effect,  and  I 
refer  particularly  to  those  of  Mr.  Butler,  who  says  that  this  proposi- 
tion is  established  "after  a  series  of  cases  :"  Butler's  Coke  upon  Little- 
ton, 272a. 

I  think,  therefore,  there  must  be  some  error,  some  slip  in  the  deci- 
sion of  James, 'V.C.,  in  In  re  Powell's  Trusts,  and  that  the  case  w-as 
wrongly  decided,  and  consequently  that  I  must  treat  a  feme  covert  as 
capable  of  creating  the  same  limitations  under  a  general  power  of  ap- 
pointment as  she  could  under  a  will  of  her  separate  estate.  The  re- 
sult, therefore,  is,  that  I  hold  the  appointment  by  Mrs.  Abdy  valid, 
and  I  give  judgment  for  the  plaintiff  in  the  terms  asked  for  by  the 
statement  of  claim.* 

8  Accord:  In  re  Flower,  55  L.  J.  Ch.  N.  S.  200  (1SS5) ;  Stuart  v.  Babiugton, 
27  Jj.  R.  (Ireland)  551;    26  H.  L.  R.  64. 

As  TO  Powers  of  Sale  in  Trustees. — Lautsbery  v.  Collier,  2  K.  &  J.  709 
(1856) ;   Goodier  v.  Edmunds,  [1893]  3  Ch.  455 ;    Gray,  Rule  Against  Perpetui- 
ties, §§  481-509  (2d  Ed.)  §§  509a-509r. 
4  Kales  Prop. — 37 


578  KULE  AGAINST  PERPETUITIES  (Part  4 

CHAPTER  VIII 
CHARITIES 


CHRIST'S  HOSPITAL  v.  GRAINGER. 

(Court  of  Chancery,  1S49.    1  Macn.  &  G.  460.) 

The  material  facts  and  circumstances  of  this  case,  which  has  been 
already  reported  in  the  court  below  (16  Sim.  83),  and  the  several  points 
raised  on  the  hearing  of  the  appeal,  are  sufficiently  stated  for  the  pur- 
pose of  this  report  in  the  following  judgment. 

The  Lord  ChancEIvIvOr  [Lord  Cottenham].  This  is  an  appeal  by 
the  Attorney-General,  who  is  a  defendant  in  the  cause,  and  the  first 
question  to  be  considered  is  the  position  which  the  Attorney-General 
has  assumed  by  this  rehearing. 

The  Corporation  of  London,  as  governors  of  Christ's  Hospital,  by 
the  bill  claimed  certain  property  which  had  been  left  by  the  testator, 
John  Hendricke,  in  1624,  to  t^e  corporation  of  Reading,  for  certain 
rhajjitable  purposes  in  that  town,  with  a  direction  that  if  the  donees 
should  for  a  year  neglect,  omit,  or  fail  to  perform  the  directions  of  his 
will,  such  gift  should  be  utterly  void,  and  should  forthwith  be  paid  and 
transferred  to  the  corporation  of  London  for  the  benefit  of  Christ's 
Hospital.  The  strict  execution  of  the  directions  of  the  will  having 
been  found  inconvenient,  an  information  was  filed  by  the  Attorney- 
General  in  the  Court  of  Exchequer  against  the  corporations  of  London 
and  Reading,  which  led  to  a  decree  in  1639,  varying  the  purposes  and 
application  of  the  charity,  but  still  confined  to  Reading ;  and  providing, 
as  in  the  will,  that  if  the  corporation  of  Reading  should  neglect  to 
perform  the  directions  of  the  decree,  or  should  misemploy  the  trust 
property,  and  such  neglect  and  misemployment  should  continue  for  a 
year,  the  legacy  should  be  void  and  of  no  effect  as  to  Reading,  and  that 
the  property  should  be  forthwith  paid  and  transferred  to  the  corpora- 
tion of  London,  for  the  benefit  of  Christ's  Hospital. 

That  the  directions  of  this  decree  as  well  as  those  of  the  will  have 
been  neglected  and  unperf oriiTed_  for  the  period  of  far  more  than  one 
yean  is  a  tact  clearly  established,  and  not  in  dispute  on  this  rehearing. 
Upon  this  fact  the  corporation  of  London  by  their  bill  sought  to  re- 
cover the  property  for  the  benefit  of  Christ's  Hospital,  and  this  the 
decree  of  the  Vice-Chancellor  directed.  The  Attorney-General  was 
properly  a  party  to  this  suit,  but,  as  it  appears,  took  no  part  in  the  dis- 
cussion. To  this  there  could  be  no  objection,  there  being  before  the 
court  parties,  the  trustees  for  the  town  of  Reading,  immediately  inter- 


Ch.  8)  CHARITIES  579 

ested  in  resisting  the  claim  of  the  plaintiffs;  but  that  course  could  only 
be  unobjectionable  upon  the  Attorney-General's  having  considered  that 
he  might  properly,  not  only  leave  the  discussion  to  the  other  defend- 
ants, but  abide  by  the  decision  upon  it.  I  cannot  approve  of  any  party 
after  a  decree,  which  he  did  not  oppose,  reopening  the  discussion  by  a 
rehearing.  As  to  such  a  party  the  proceeding  is  in  effect  an  original 
hearing.  What  might  be  the  result  of  such  an  attempt  by  an  ordinary 
party,  I  need  not  now  decide;  because  in  cases  of  charities  the  court  is 
less  strict  in  enforcing  its  rules  of  proceeding,  and  will  not  upon  such 
an  objection  refuse  to  hear  such  case  as  the  Attorney-General  may 
have  to  make. 

This  leads  to  the  consideration  of  what  the  case  is  that  the  Attorney- 
General  can  make  upon  this  rehearing.  The  only  case  he  can  make, 
and  what  he  has  attempted,  is  to  show  that  the  bill  ought  to  have  been 
dismissed ;  that  so  far  as  this  cause  is  concerned,  the  court  ought  to 
have  decided  that,  although  the  directions  of  the  will  and  of  the  decree 
of  the  Exchequer  have  been  wholly  neglected,  and  the  charity  property, 
therefore,  misapplied,  the  town  of  Reading  is  nevertheless  to  continue 
in  the  enjoyment  of  the  property.  Such  in  point  of  form  must  be 
the  contention  of  the  Attorney-General;  but  such  is  not  and  cannot  be 
his  real  object;  but  he,  finding  that  the  decree  shuts  out  the  case  which 
he  had  thought  it  right  to  present  to  the  court  upon  an  information,^ 
takes  this  step  to  remove  that  impediment  out  of  his  way.  This  again 
shows  how  unfortunate  it  was  he  did  not  raise  the  whole  case  in  the 
court  below,  which  might  and  ought  to  have  been  done  by  the  cause 
and  the  information  being  heard  together.  This  court  is  well  justified 
in  regretting,  and  possibly  in  complaining,  that  this  was  not  done ;  but 
I  do  not  think  it  right  upon  these  grounds  to  decline  giving  my  opinion 
upon  the  points  raised  now  for  the  first  time  by  the  Attorney-General, 
and  I  proceed,  therefore,  to  consider  them,  bearing  in  mind  that  this 
is  a  gift  to  a  corporation  upon  certain  charitable  trusts,  with  a  pro- 
viso that  in  a  certain  event  such  gift  shall  cease,  and  the  property  be 
transferred  to  another  corporation  for  certain  other  charitable  trusts ; 
and  that  the  event,  upon  which  such  cesser  and  transfer  were  directed 
to  take  place,  has  happened. 

Brown  v.  Higgs,  8  Ves.  574,  was  indeed  cited,  as  proving  that  the 
gift  over  could  not  take  effect  from  the  act  of  the  trustees.  That 
case  not  only  does  not  support  that  proposition,  but  proceeds  upon  a 
principle  inconsistent  with  it ;  for  it  only  upon  this  point  decided,  that 
the  object  of  a  testator  should  not  be  disappointed  by  the  neglect  of  a 
trustee;   but  in  this  case  the  testator  has  made  the  gift  over  to  depend 

1  Previously  to  the  institution  of  tliis  suit,  an  information  liad  been  tiled 
by  tlie  Attorney-General  on  the  recommendation  of  the  charity  commission- 
ers (but  to  which  the  present  plaintiffs  were  not  made  parties),  praying  a 
scheme  for  the  futux-e  regulation  of  the  charity,  and  suggesting  a  cy  pres 
application  of  its  funds  to  the  building  and  endowment  of  schools  in  the 
town  of  Reading. — Rep. 


5S0  RULE   AGAINST  PERPETUITIES  (Part  4 

upon  the  act  of  the  trustee ;  and  to  hold  that  the  act  of  the  trustee  was 
inoperative  for  that  purpose,  would  be  to  defeat  and  not  to  forward  his 
object.  The  Attorney-General,  however,  further  contends  that  this 
provision  for  cesser  and  transfer  was  void  as  repugnant  to  the  original 
gift.  This  is  so,  if  the  original  gift  was  indefeasible,  but  not  otherwise, 
and  that  is  the  question ;  the  proposition  therefore  is  only  a  conse- 
quence of  the  point  in  dispute,  if  decided  one  way,  and  not  an  argument 
for  the  decision. 

It  was  then  argued  that  it  was  void,  as  contrary  to  the  rules  against 
perpetuities.  These  rules  are  to  prevent,  in  the  cases  to  which  they 
apply,  property  from  being  inalienable  beyond  certainperiods!  Is  tliis 
ettect  produced,  and  arelHese  rules  invacled  by  the  transfer,  in  a  cer- 
tain event,  of  property  from  one  charity  to  another?  If  the  corporation 
of  Reading  might  hold  the  property  for  certain  charities  in  Reading, 
why  may  not  the  corporatiorLof  London  hold  it  for  the  charity  of 
ChjjsFsTJospitaMri  London  ?     The  propeii;y_js_neitHer  more  nor  less 

The  next  argument  was,  that  the  forfeiture  created  by  the  will  was 
destroyed  by  the  decree,  and  that  the  forfeiture  created  by  the  decree 
was  inoperative,  being  beyond  the  jurisdiction  of  the  court.  These 
arguments  are  not  very  consistent.  If  the  court  exceeded  its  juris- 
diction in  the  provision  for  the  transfer,  the  provisions  of  the  will  were 
not  affected  by  it;  but  in  fact  the  decree  only  varied  the  first  trusts 
prescribed  by  the  will,  substituting  others ;  but  preserved  the  forfei- 
ture ;  and  whether  the  forfeiture  under  the  will  or  under  the  decree  be 
the  operative  provision  is  not  material,  it  being  established  that  the 
event  has  happened  which  under  either  was  to  create  the  cesser  and 
transfer.  To  meet  this  answer,  it  was  contended,  that  the  bill  sought 
relief  only  under  the  provisions  of  the  will;  but  that  is  not  so,  for  the 
bill  alleges  that  "the  plaintiffs  are  advised  that  under  the  circumstances 
before  stated  the  limitation  over  in  favor  of  the  plaintiffs  contained  in 
the  will  has  taken  effect,  and  that  the  plaintiffs  are  now  entitled  under 
the  provisions  of  the  will  and  of  the  decree  to  have  the  estates  and 
property  transferred  to  them." 

But  lastly,  it  was  contended,  that  the  plaintiffs'  claim  was  barred  by 
time,  more  than  twenty  years  having  elapsed  since  the  facts  which  are 
said  to  have  created  the  forfeiture,  and  since  the  plaintiffs  knew  of 
these  facts.  Time  is  permitted  to  create  a  bar  in  order  to  quiet  titles. 
Is  then  the  Attorney-General  contending  that  time  has  sanctioned 
the  breaches  of  trust  committed  by  the  corporation  of  Reading,  and 
that  the  purposes  to  which  they  applied  the  trust  property  are  not  to  be 
disturbed?  This  cannot  be,  and  is  not  the  object  of  the  Attorney- 
General.  His  object  is  to  let  in  the  jurisdiction  of  the  court  for  the 
purpose  of  having  the  property  applied  to  purposes  distinct  from  any 
provisions  of  the  will  or  decree.  He  repudiates  the  purposes  to  which 
the  corporation  of  Reading  were  directed  to  apply  the  property,  as 


Ch.  8)  CHARITIES  581 

much  as  he  does  those  to  which  the  corporation  of  London  were  direct- 
ed to  apply  it.  Is  this  quieting  the  title  of  the  corporation,  or  of  those 
who  now  claim  in  their  place?  ^  The  question  is  not  whether  time  is 
a  bar  to  any  claim  adverse  to  the  title  of  the  original  donee ;  but  wheth- 
er such  title  is  to  be  superseded  in  favor  of  those  to  whom  upon  fail- 
ure of  such  title  the  testator  has  given  the  property,  or  in  favor  of 
general  charity  unconnected  with  any  expressed  object  of  the  testator. 
If,  indeed,  there  were  adverse  claims  between  cestui  que  trusts,  time 
might  create  a  bar  as  between  them,  though  it  could  not  as  between  a 
cestui  que  trust  and  a  trustee,  upon  the  principle  ultimately  established 
in  Cholmondeley  v.  Clinton,  2  J.  &  W.  1 ;  but  that  is  not  the  case  here : 
both  tlie  contending  parties,  the  Attorney-General  and  the  plaintiffs, 
under  the  same  facts,  claim  the  property  which  up  to  the  present  time 
has  remained  in  the  hands  of  the  forfeiting  party  who  no  longer  dis- 
putes the  forfeiture.  As  between  the  Attorney-General  and  the  plain- 
tiffs, there  has  not  been  any  adverse  title  or  possession. 

Some  confusion  may  have  arisen  from  the  use  of  the  word  forfeiture. 
In  one  sense,  the  cesser  of  one  set  of  trusts,  and  the  commencement 
of  the  other  may  be  considered  as  a  forfeiture,  but  the  form  and  sub- 
stance of  the  provision  is  rather  a  substitution  of  one  trust  for  another. 
The  property  was  vested  in  the  corporation  of  Reading,  but  in  a  certain 
event  they  were  to  become  trustees  of  it  for  Christ's  Hospital.  Now 
if  the  effect  of  these  provisions  was  to  constitute  the  corporation  of 
Reading,  in  the  event  which  happened,  trustees  for  Christ's  Hospital, 
until  they  transferred  the  property  as  directed,  (and  such  it  would  seem 
was  the  only  interest  they  had,  and  the  only  duty  they  had  to  perform,) 
there  could  not  have  arisen,  as  between  them  and  the  plaintiff's,  any 
question  of  time  or  adverse  possession:  but  that  is  not  the  question  I 
have  to  consider. 

It  appears  to  me  that  the  Attorney-General  cannot  maintain  the 
points  he  has  attempted  to  establish  upon  this  rehearing,  and  that  the 
decree   of   the   Vice-Chancellor   must  be   affirmed.^ 

-  i.  e.  The  defendants,  Grainger  and  others,  who  had  been  appointed  by 
the  Lord  Chancellor  tnistees  of  the  charity  estates  under  the  provisions  of 
the  Municipal  Reform  Act. — Rep. 

3  Accord :  Storrs  Agricultural  School  v.  Whitney,  54  Conn.  342,  8  Atl.  141 
(1SS7) ;  MacKenzie  v.  Tnistees  of  Presbytery  of  Jersey  City,  67  N.  J.  Eq. 
652,  61  Atl.  1027,  3  L.  R.  A.  (N.  S.)  227. 


582  KULE  AGAINST  PERPETUITIES  (Part  4 

In  re  TYLER. 
(Chancery  Division,  Court  of  Appeal.    L.  R.  [1S91]  3  Ch.  252.) 

Appeal  from  Mr.  Justice  Stirling.  Sir  James  Tyler,  who  died  on 
the  5th  of  April,  1890,  by  his  will,  dated  the  18th  of  April,  1882,  after 
appointing  his  brothers,  William  Tyler  and  Charles  Tyler,  his  execu- 
tors, made  the  following  bequest : 

"I  give  to  the  trustees  for  the  time  being  of  the  London  Missionary 
Society  the~sum  ot  ±42,UUU  Russian  5  .per  Cent,  ^tock,"  witli~a  reht^ 
chaTge  to  my  brother,  Charles  Tyler,  Esq.,  of  £1000  a  year  for  life! 
Also  I  commit  to  their  keeping  of  the  keys  of  my  family  vault  at 
Highgate  Cemetery,  to  the  (sic)  care  and'^harge,  my  brothers  to  be  " 
buried  in  the  vault  if  they  wish,  and  to  use  the  same,  if  they  wish,  for 
any  member  of  the  family,  the  same  to  be  kept  in  good  repair  and 
nam^Jegible,  and  torebuild  when  i^  shall  requifg^  failing  Lo  comply 
with  this  request,  the  money  left  to  go  to_the  Blue  Coat  School,  New- 
gate Street,  Loiidon."  "^""^ ""^ 

THs  was  an  originating  summons  to  obtain  the  opinion  of  the  court 
as  to  whether  (among  other  questions  arising  on  the  will)  the  condi- 
tion attached  to  the  above  legacy,  for  keeping  up  the  testator's  family 
vault,  was  vaHd  and  binding  on  the  legatees,  the  trustees  of  the  Lon- 
don Missionary  Society. 

The  summons  was  heard  before  Mr.  Justice  Stirling  on  the  21st  of 
February,  1891. 

Stirling,  J.  The  question  I  have  to  consider  is,  whether  the  con- 
dition attached  by  the  testator  to  the  legacy  to  the  London  Missionary 
Society  is  binding  on  the  trustees  of  that  society,  or  is  void.  No 
doubt  a  trust  or  gift  for  keeping^p  ,a-tQmb  not  forming  part  of  a 
church  is  bad,  since  such  a  purpose  is  not  charitable,  and  the  trust  j^r 
gift  creates  a  perpeFuitv.  TKomson  v.  Shakespear,  1  D.  F.  &  J.  399; 
Rickard  v.  Robson,  31  Beav.  244;  Hoare  v.  Osborne,  Law  Rep.  1  Eq. 
585.  Here,  however,  the  question  is  not  whether  the  gift  or  trust 
for  the  purpose  of  keeping  up  the  tomb  is  good  or  bad,  but  whether 
the  gift  over,  in  the  event  of  failure  tn  kfpp  in  rcyVT^,  ^^  annthpr  rbpri-. 
t>^~can  be  held  to  be  bad.  The  rule  against  perpetuities  has  no  ap- 
phcation  to  a  transter  m  a  certain  event  from  one  charity  to  another, 
as  is  expressly  laid  down  by  Lord  Cottenham  in  the  case  of  Christ's 
Hospital  V.  Grainger,  1  Mac.  &  G.  460,  464.  It  is  said  that  the  con- 
dition tends  to  produce  or  bring  about  a  misapplication  of  funds  de- 
voted to  charitable  purposes,  and  the  case  of  Wilkinson  v.  Wilkinson 
was  referred  to  as  showing  that  the  gift  must,  therefore,  be  held  to  be 
bad.  I  am,  however,  unable  tn  spp  fhnf  thp  rnnditinn  ■impn'^pH  here 
tends  necessarily  to  a  breach  of  trus_t  on  the  part  of  the  trustees  of 
the  Society,  "^uch  societies  depend  largely  on  the  voluntary  contri- 
butions of  their  supporters;   and  the  funds  required  for  keeping  the 


Ch.  S)  CHARITIES  583 

family  vault  in  repair  may  readily,  I  doubt  not,  be  obtained  from  per- 
sons willing  to  subscribe  for  the  purpose  of  retaining  the  administra- 
tion of  this  large  fund  in  the  hands  of  the  society,  and  without  in  the 
least  trenching  on  any  funds  devoted  to  charitable  purposes. 

I  am  of  opinion,  therefore,  that  the  condition  is  good. 

From  that  decision  the  defendants,  the  trustees  of  the  London  Mis- 
sionary Society,  appealed,  asking  that  it  might  be  declared  that  the 
condition  attached  to  the  legacy  was  void,  and  that  the  gift  over  of 
the  legacy  to  the  defendants,  the  Governors  of  Christ's  Hospital,  upon 
the  breach  of  such  condition,  was  not  a  good  gift. 

Since  the  commencement  of  the  proceedings  the  plaintiff  had  died, 
the  defendant,  Charles  Tyler,  thus  becoming  the  testator's  sole  legal 
personal  representative. 

The  appeal  came  on  for  hearing  on  the  17th  of  July,  1891. 

LiXDLEY,  L.  J.  In  this  case  Sir  James  Tyler,  by  his  will,  made  a 
disposition  which  is  not  in  very  artificial  language,  but  it  is  tolerably 
plain.  It  runs  thus :  "I  give  to  the  trustees  for  the  time  being  of  the 
London  Missionary  Society  the  sum  of  £42,000  Russian  5  per  Cent. 
Stock,  with  a  rent-charge  to  my  brother  Charles  Tyler,  Esq.,  of  ilOOO 
a  year  for  life.  Also  I  commit  to  their  keeping  of  the  keys  of  my 
family  vault  at  Highgate  Cemetery  to  the  care  and  charge."  Then 
comes  a  clause  which  is  parenthetical :  "My  brothers  to  be  buried  in 
the  vault  if  they  wish,  and  to  use  the  same,  if  they  wish,  for  any  mem- 
ber of  the  family,  the  same  to  be  kept  in  good  repair,  and  name  legible, 
and  to  rebuild  when  it  shall  require." 

Leaving  out  the  parenthetical  clause  as  to  the  brothers,  it  runs 
thus :  "I  commit  to  their  keeping" — that  is,  the  London  Missionary 
Society's  keeping — "of  the  keys  of  my  family  vault  at  Highgate  to 
the  care  and  charge" — I  suppose  that  means  "their"  care  and  charge 
— "the  same  to  be  kept  in  good  repair,  and  name  legible,  and  to 
rebuild  when  it  shall  require :  failing  to  comply  with  this  request,  the 
money  left  to  go  to  the  Blue  Coat  School,  Newgate  Street,  London." 

j\lr.  Justice  Stirling  has  decided  that  the  condition  on  which  the  gift 
over  is  to  take  effect  is  valid,  and  the  appeal  to  us  is  against  so  much 
of  his  order  as  declares  that  the  condition  of  repairing  and  rebuilding 
the  family  vault  is  a  valid  condition  and  binding  on  the  defendants,  the 
London  Missionary  Society;  the  defendants  asking  that  that  may  be 
reversed. 

There  is  no  doubt  whatever  that  this  condition,  in  one  sense,  tends 
to  a  perpetuity.  The  tomb  or  vault  is  to  be  kept  in  repair,  and  in  re- 
pair for  ever.  There  is  also  no  doubt,  and  I  think  it  is  settled,  that  a 
gift  of  that  kind  cannot  be  supported  as  a  charitable  gift.  But,  then, 
this  case  is  said  to  fall  within  an  exception  to  the  general  rule  relating 
to  perpetuities.  It  is  common  knowledge  that  the  rule  as  to  perpetui- 
ties does  not  apply  to  property  given  to  charities ;  and  there  are  rea- 
sons why  it  should  not.     It  is  an  exception  to  the  general  rule ;   and 


584  RULE   AGAINST  PERPETUITIES  (Part   4 

we  are  giiided  in  the  application  of  that  doctrine  by  the  case  which 
has  been  referred  to  of  Christ's  Hospital  v.  Grainger,  1  ]\Iac.  &  G.  460. 
It  is  sufficient  for  me  to  refer  to  the  head-note  for  the  facts.  The 
bequest  there  was  "to  the  corporation  of  Reading,  on  certain  trusts 
for  the  benefit  of  the  poor  of  the  town  of  Reading,  with  a  proviso  that, 
if  the  corporation  of  Reading  should,  for  one  whole  year,  neglect  to 
observe  the  directions  of  the  will,  the  gift  should  be  utterly  void,  and 
the  property  be  transferred  to  the  corporation  of  London,  in  trust  for 
a  hospital  in  the  town  of  London."  It  was  argued  that  that  gift  over 
was  invalid,  and  Lord  Cottenham  disposes  of  the  argument  in  this 
way  (1  Mac.  &  G.  464) :  "It  was  then  argued  that  it  was  void,  as  con- 
trary to  the  rules  against  perpetuities.  These  rules  are  to  prevent,  in 
the  cases  to  which  they  apply,  property  from  being  inalienable  beyond 
certain  periods.  Is  this  effect  produced,  and  are  these  rules  invaded 
by  the  transfer,  in  a  certain  event,  of  property  from  one  charity  to 
another?  If  the  corporation  of  Reading  might  hold  the  property  for 
certain  charities  in  Reading,  why  may  not  the  corporation  of  London 
hold  it  for  the  charity  of  Christ's  Hospital  in  London  ?  The  property 
is  neither  more  nor  less  alienable  on  that  account." 

Guided  by  that  decision,  and  acting  on  that  principle,  Mr.  Justice 
Stirling  held  that  this  condition  was  a  valid  condition ;  and  it  appears 
to  me  that  he  was  right.  What  is  this  gift  when  you  come  to  look  at 
it?  It  is  a  gift  of  i42,000  Russian  5  per  Cent.  Stock  to  the  London 
Missionary  Society.  What  for?  It  is  for  their  charitable  purposes. 
It  is  a  gift  to  them  for  the  purposes  for  which  they  exist.  Then  there 
is  a  gift  over  to  another  charity  in  a  given  event — that  is  to  say,  the 
non-repair  of  the  testator's  vault.  It  seems  to  me  to  fall  precisely 
within  the  principle  on  which  Clirist's  Hospital  v.  Grainger  w^as  de- 
cided. A  gif t  to  a^  chantv  for"cHaritable  purposes,  with  a  gi^t_over  on 
an  event  whTcli  mav__be  beyond  the  ordinary  limit  of  perpetuities  to 
another  ^larity^^Tcannot  see  that  there  is  anything  ille^gaT  in  this. 
J\Ir.  Buckley  has  put  it  in  the  strongest  way  he  can.  He  says  that,  if 
you  give  eltect  to  this  condition,  you  will  be  enabling  people  to  evacte" 
the  law  relatingJojjerpetuTtics.  Ttalce Tt^ffiis  decision  will  not  go  the 
length — certainly  I  do  not  intend  it  should,  so  far  as  I  am  concerned — • 
that  you  can  get  out  of  the  law  against  perpetuities  by  making  a 
charity  a  trustee.  That  would  be  absurd ;  but  that  is  not  this  case. 
This  property  is  given  to  the  London  Missionary  Society  for  their 
charitable  purposes.  Then,  there  is  a  condition  that,  if  the  tonTb  is 
not  kept  in  order,  the  fund  shall  g^_ovpr  to  another  rhnrity. —  That 
appears  to  me,  both  on  principle  andjtuthority^  to  be  valid ;  and  I  do 
not  think  it  is  a  suf^cient  answer  to  say  that  such  a  conclusion  is  an 
inducement  to  do  that  which  contravenes  the  law  against  perpetuities. 
There  is  nothing  illegal  in  keeping  up. a  tomb;  on  the  contrary,  it  is  a 
very  laudable  thing  to  do.  It  is  a  rule  of  law  that  you  shall  not  tie  up 
property  in  such  a  way  as  to  infringe  what  we  know  as  the  law  against 


Ch.  8)  CHARITIES  585 

perpetuities;  but  there  is  nothing  illegal  in  what  the  testator  has  done 
here.,^   The  appeal  must  be  cTismissed  with  costs. 

Fry,  L.  J.    I  am  of  the  same  opinion. 

In  this  case  the  testator  has  given  a  sum  of  money  to  one  charity 
with  a  gift  over  to  another  charity  upon  the  happening  of  a  certain 
event.  That  event,  no  doubt,  is  such  as  to  create  an  inducenient  or 
motive  on'the  p¥Ft  of  the  first  donee,  the  London  Missionary  Society, 
to~1fepairthe  family  tomb  of  the  testator.  Inasmuch  as  both  the  do- 
nees  ofThisTund,  the  first  donee  and  the  second,  are  charitable  bodies, 
and  are  created  for  the  purposes  of  charity,  the  rule  of  law  against 
perpetuities  has  nothing  whatever  to  do  with  the  donees.  Does  the 
rule  of  law  against  perpetuities  create  any  objection  to  the  nature  of 
the  condition  ?  If  the  testator  had  required  the  first  donee,  the  Lon- 
don ]^Iissionary  Society,  to  apply  any  portions  of  the  fund  towards  the 
repair  of  the  family  tomb,  that  would,  in  all  probability,  at  any  rate,  to 
the  extent  of  the  sum  required,  have  been  void  as  a  perpetuity  which 
was  not  charity.  But  he  has  done  nothing  of  the  sort.  He  has  given 
the  first  donee  no  power  to  apply  any  part  of  the  money.  He  has  only 
created  a  condition  that  the  sum  shall  go  over  to  Christ's  Hospital  if 
the  London  Missionary  Society  do  not  keep  the  tomb  in  repair. 
Keeping  the  tomb  in  repair  is  not  an  illegal  object.  If  it  were,  the 
condition  tending  to  bring  about  an  illegal  act  would  itself  be  illegal ; 
but  to  repair  the  tomb  is  a  perfectly  lawful  thing.  All  that  can  be 
said  is  that  it  is  not  lawful  to  tie  up  property  for  that  purpose.  But 
the  rule  of  law  against  perpetuities  applies  to  property,  not  motives ; 
anin  know  of  no  rule  -which  says  that_>xiu_may jiot  try  to  enforce  a 
condition  creating  a  perpetual  inducement  to  jdo  a  thing  which  is  law- 
ful;     ThaOs  this  case. 

■~Tlien  it  is  said  by  Mr.  Buckley,  "But  if  the  gift  had  been  to  the 
London  Missionary  Society  simply,  they  might  have  spent  the  money; 
by  imposing  this  condition  you  require  them  to  keep  that  invested, 
because  it  may  have  to  go  over  at  any  moment  to  Christ's  Hosj^tal." 
What  is  the  harm  of  that?  Being  a  charity,  and  not  affected  by  the 
rule  against  perpetuities,  whether  you  direct  them  to  keep  the  money 
invested  in  plain  Avords,  or  whether  you  impose  the  condition  which 
renders  it  necessary  to  keep  it  invested,  seems  to  me  the  same  thing 
and  to  be  equally  harmless,  and  not  affected  by  the  law  against 
perpetuities. 

I  think  the  learned  Judge  in  the  court  below  was  quite  right,  and 
that  this  appeal  must  be  dismissed. 

Lopes,  L.  J.    I  am  of  the  same  opinion. 


586  EULE  AGAINST  PERPETUITIES  (Part  4 

In  re  BOWEN. 
(Chancery  Division,  1893.     L.  R.  [1893]  2  Ch.  491.) 

Adjourned  summons.  The  Rev.  Daniel  Bowen,  of  Wann-I-for,  in 
the  county  of  Cardigan,  by  his  will,  dated  the  3d  of  September,  1846, 
bequeathed  to  trustees  two  sums  of  £1,700  and  £500,  respectively,  upon 
trust  to  invest  the  same,  and  in  the  next  place  to  establish  in  each  of 
certain  parishes  in  Wales,  a  Welsh  day-school  to  be  called  the  "Wann- 
I-for  Charity  School,"  and  to  continue  the  same  schools  for  ever  there- 
after; and  he  declared  that  "if  at  any  tim_e_hereaf ter  the  Government 
of  this  kingdom  shall  establish  a  general  systern  of  education,  the  sev- 
eraTTrusts  ot  the  said  several  sums  of  £1,700  and  £500  shall  cease  and 
determine,  and  I  bequeath  the  said  several  sums  in  the  same  manner 
as  I  have  bequeathed  the  residue  of  my  personal  estate." 
^The  testator  appointed  his  sisters,  Jane  Lloyd,  Ann  Phillips,  and 
Rachel  Rees,  to  be  his  executrixes  and  residuary  legatees. 

The  testator  died  in  October,  1847,  and  after  his  death  the  two  sums 
of  £1,700  and  £500  were  duly  applied  for  the  purposes  of  the  charities. 

This  was  an  originating  summons  taken  out  by  the  personal  repre- 
sentatives of  the  residuary  legatees  raising  the  following  questions : 
(1)  whether  the  Government  had  by  the  Elementary  Education  Act, 
1870,  and  the  Acts  amending  it,  established  a  general  system  of  educa- 
tion; (2)  whether  the  trusts  by  the  will  declared  of  the  two  sums  of 
£1,700  and  £500  had  ceased  and  determined;  and  (3)  whether,  if  so, 
those  sums  had  fallen  into  the  residue  of  the  testator's  estate.  The 
summons  was  opposed  by  the  trustees  of  the  charities  and  the  Attor- 
ney-General. 

Stirling,  J.  (after  stating  the  facts,  continued).  According  to  the 
law  as  stated  by  Sir  G.  Jessel,  M.  R.,  in  London  and  South- Western 
Railway  Co.  v.  Gomm,  20  Ch.  D.  562,  581,  if  the  gift  in  favor  of  the 
residuary  legatees  is  one  which  is  not  to  vest  until  after  the  expiration 
of,  or  will  not  necessarily  vest  within  the  period  fixed  and  prescribed 
by  law  for  the  creation  of  future  estates  and  interests,  then  the  gift  is 
bad,  unless  the  circumstance  that  the  prior  gift  is  in  favor  of  a  charity 
makes  a  difference.  It  has  been  decided  that  the  rule  against  perpetui- 
ties has  no  application  to  the  transfer  in  a  certain  event  of  property 
from  one  charity  to  another.  Christ's  Hospital  v.^_^rainger,  1  Mac. 
&  G.  460;  In  re  Tyler,  [1891]  3  Ch.  252.  The  principle  of  those  de- 
cisions, however,  does  not  extend,  in  my  opinion,  to  cases  where  (1) 
an  immediate  gift  in  favor  of_griyale_individAJ  is  followed  by  an 
exe^tory^giftln  f avoFof  charity,  or  (2)  arTimmediate  gift  m  tavorbf 
charily Ts  foTToWedriJylifrexecutory  gift  in  Tavor  of  private^mdividuals. 
Of  tTiFTormer  class  of  cases" Lord  Chancellor  Selborne,  in  gu'ing  the 
judgment  of  the  Court  of  Appeal  in  Chamberlayne  v.  Bockett,  Law 
Rep.  8  Ch.  211,  says:  "If  the  gift  in  trust  for  charity  is  itself  condi- 
tional upon  a  future  and  uncertain  event,  it  is  subject,  in  our  judgment, 


Ch.  8)  CHARITIES  587 

to  the  same  rules  and  principles  as  any  other  estate  depending  for  its 
coming  into  existence  upon  a  condition  precedent.  If  the  condition  is 
never  fulfilled,  the  estate  never  arises ;  if  it  is  so  remote  and  indefinite 
as  to  transgress  the  limits  of  time  prescribed  by  the  rules  of  law  against 
perpetuities,  the  gift  fails  ab  initio."  The  second  class  of  cases  does 
not  seem  to  have  fallen  under  the  consideration  of  any  court  in  this 
country;  but  the  Supreme  Court  of  Massachusetts  has  in  Bratde- 
Square  Church  v.  Grant,  3  Gray,  142,  63  Am.  Dec.  725,  and  Theologi- 
cal Education  Society  v.  Attorney-General,  135  Mass.  285,  held  that 
the  rule  against  perpetuities  applies  to  them.  For  the  knowledge  of 
these  decisions  I  am  indebted  to  the  very  learned  and  able  treatise  of 
Professor  J.  C,  Gray  on  the  Rule  against  Perpetuities  (see  sect.  593), 
to  which  I  was  referred  in  argument.  On  the  other  hand,  as  property 
may  be  given  to  a  charity  in  perpetuity,  it  may  be  given  for  any  shorter 
period",  however  long;  and  tlie  interes^undisposed  of,  even  irTt~cannOT~" 
be^trre'subject  ot_a  dii"ect""executofy  gift,  may  beTeTt  to  develop  as~trie 
law  prescribes.  Of  this  an  example  is  to  be  found  in  In  re  Randell,  38 
Ch.  D.  213,  218,  in  which  the  head-note  is  as  follows:  "A  testatnx  be- 
queathed i  14,000  on  trus^to  pay  the  income  to_the  incumbent  of  the 
church  at  H.  for  the  time  being  so  long  as  he  permitted  the  sittings  to 
be  ^occupied'  Tree!  in  case  payment  for  sittiiigs  ^  was  evejL  demanded, 
she  directed  the  i  14,000  to  fall  into  her  residue  :-^Held,  first,  that  the 
testatrnTTiad  noTexpressecTa  general  intention  to  devote  the  i  14,000 
to  charitable  purposes,  so  that  in  case  of  failure  of  the  trust  for  the 
benefit  of  the  incumbent  the  fund  would  be  applied  cy  pres ;  secondly, 
that  the  clirection  that  the  fund  should  fall  into  the  residue,  bein^  a  di- 
rection that  the  fund  should  go  as  the  law  would  otherwise  carry  it, 
did  not  ofifend  the  rule  agamst  perpetuities."  In  giving  judgment  ]\Ir. 
Justice  North  said:  "On  the  construction  of  the  will,  it  is  a  charitv  for 
a  particular  limited  purpose,  and  nothing  beyond  that  is  declared ;  as 
soon  as  that  particular  purpose  comes  to  an  end,  the  fund  which  was 
subjected  to  that  particular  trust  falls  into  the  residue  of  the  estate; 
and  it  would  do  so  just  as  much  if  there  was  no  such  limitation  as  this 
in  the  will,  as  it  does  when  the  limitation  exists.  The  limitation  is  that, 
in  that  case,  'the  trust  moneys,  and  the  interest,  dividends,  and  annual 
income  arising  therefrom  shall  fall  into  and  be  dealt  with  as  part  of 
my  residuary  personal  estate.'  If  she  had  said  that  it  would  fall  into 
and  form  part  of  her  residuary  personal  estate,  she  would  simply  have 
been  saying  what  the  law  is ;  and  saying  that  it  shall  do  so  is  simply 
saying  what  the  law  would  do  without  such  a  statement.  In  mv^opin- 
ion  a  direction  that  in  a  particular  event  a  fund  shall  go  in  the  way  in 
which  the  law  would  make  it  go  in  the  absence  of  such  a  direction, 
cannor'&e^id--tQ-Jie  an  invalid  gift,  or  contrary  to  the  policy^of^jthe 
law," 

The  question  which  I  have  to  decide,  therefore,  appears  to  me  to  re- 
duce itself  to  one  of  the  construction  of  the  testator's  will — i.  e.,  wheth- 
er the  testator  has  given  the  property  to  charity,  in  perpetuity,  subject 


588  RULE   AGAINST  PERPETUITIES  (Part  4 

to  an  executory  gift  in  favor  of  the  residuary  legatee,  P^_^^^^^^iL^ 
has  given  it  for  a  limited  period,  leaving  the  undisposecToITnterest  tQ^ 
faTTinto  residue.  In  construing  the  wilfthe  rule  to  be  applied  is  that 
stated  by  Lord^Selborne  in  Pearks  v.  Moseley,  5  App.  Cas.  714,  719: 
"You  do  not  import  the  law  of  remoteness  into  the  construction  of  the 
instrument,  by  which  you  investigate  the  expressed  intention  of  the 
testator.  You  take  his  words,  and  endeavor  to  arrive  at  their  mean- 
ing, exactly  in  the  same  manner  as  if  there  had  been  no  such  law,  and 
as  if  the  whole  intention  expressed  by  the  words  could  lawfully  take 
effect.  I  do  not  mean,  that,  in  dealing  with  words  which  are  obscure 
and  ambiguous,  weight,  even  in  a  question  of  remoteness,  may  not 
sometimes  be  given  to  the  consideration  that  it  is  better  to  effectuate 
than  to  destroy  the  intention ;  but  I  do  say,  that,  if  the  construction 
of  the  words  is  one  about  which  a  court  would  have  no  doubt,  though 
there  was  no  law  of  remoteness,  that  construction  cannot  be  altered,  or 
wrested  to  something  different,  for  the  purpose  of  escaping  from  the 
consequences  of  that  law."  Now,  the  sums  of  il,700  and  i500  are 
bequeathed  to  trustees  who  are  obviously  selected  with  a  view  to  the 
efficient  administration  of  the  charitable  trusts  created  by  the  will,  and 
were  not  intended  by  the  testator  to  be  charged  with  any  duties  as  re- 
gards any  other  portion  of  his  property.  He  directs  the  trustees  named 
in  the  will,  by  means  of  the  funds  paid  over  to  them  by  his  executors, 
to  establish  certain  schools,  "and  to  continue  the  same  schools  for  ever 
thereafter."  He  contemplates  a  perpetual  succession  of  trustees  in 
whom  the  execution  of  the  trusts  is  to  be  vested.  I  think  that  on  the 
true  construction  of  the  will  there  is  an  immediate  disposition  in  favor 
of  "chanty  m  perpeiuiiy,  and  not  tor  any  shorter  period.  That  is  f ol- 
lowed  by  a  gilt  over  it  at  any  time  the  Government  should  establish 
a  general  system  6t  education ;  and  under  that  gift  over  the  residuary 
legatees  take  a  iuture  interest  conditional  on  an  event  which  need  not 
necessarily  occur  within  perpetuity  limits.  It  follows  that  the  giit  over 
is  bad;   and,  consequently,  the  summons  must  be  dismissed.* 

4  Where  the  gift  to  the  charity  comes  to  an  end  at  too  remote  a  time, 
there  is  a  resulting  trust,  and  the  fact  that  at  that  time  those  are  entitled 
who  would  take  under  the  residuary  clause  makes  no  difference.  In  re 
Blunt's  Trusts  [1904]  2  Ch.  767;  Hopkins  v.  Grimshaw,  1G5  U.  S.  342.  355. 
17  Sup.  Ct.  4.01,  41  L.  Ed.  739;  Gray,  Rule  Against  Perpetuities  (2d  Ed.)  § 
603i. 


Ch.  8)  CHARITIES  589 

SIXXETT  V.  HERBERT. 

(Court  of  Chancery,  1872.    L.  R.  7  Ch.  2.32.) 

This  was  an  appeal  from  a  decision  of  Vice-Chancellor  Bacon,  Law 
Rep.  12  Eq.  201.^ 

Mary  Moine,  by  her  will,  dated  the  7th  of  April,  1865,  after  giving 
certain  annuities  and  disposing  of  her  real  estates,  bequeathed  to  Fred- 
erick Rowland  Roberts  and  John  Sinnett,  whom  she  appointed  her  ex- 
ecutors, £3.000,  "to  be  by  them  applied  in  aid  of  an  endowment  for  a 
Welsh  church  now  in  course  of  erection  at  Aberystwith.  And  as  for 
and  concerning  the  residue  of  my  personal  estates  and  effects,  subject 
to  the  payment  of  my  debts,  funeral  and  testamentary  expenses,  and 
the  legacies  hereinbefore  by  me  bequeathed,  I  bequeath  the  same  to 
the  said  F.  R.  Roberts  and  J.  Sinnett  upon  trust  to  be  by  them  applied 
in  aid  of  erecting  or  of  endowing  an  additional  church  at  Aberystwith 
aforesaid." 

The  testatrix  died  on  the  10th  of  December,  1866. 

A  suit  having  been  instituted  for  the  administration  of  the  testatrix's 
estate,  an  inquiry  was  directed  by  the  decree  whether  there  was  any 
church  answering  the  description  in  the  will  of  "an  additional  church 
at  Aberystwith"  being  erected  or  being  about  to  be  erected  at  the  time 
of  the  death  of  the  testatrix. 

By  his  certificate,  the  chief  clerk  found  that  there  was  not  any 
church  answering  the  description  in  the  will  of  an  additional  church  at 
Aberv^stwith  bemg  erected  or  being  about  to  be  erected  at  the  time  of 
the  testatrix's  death. 

It  appeared  from  the  evidence  of  the  vicar  of  Aberystwith,  that  at 
the  date  of  the  will  there  was  at  Aberystwith  the  church  of  St.  Michael, 
which  was  constituted  by  Order  in  Council  in  1861  the  district  church, 
and  that  there  was  also  a  church  then  in  course  of  erection  as  a  chapel 
of  ease  to  St.  Michael's,  and  known  as  the  "Welsh  church,"  from  its 
being  intended  to  hold  the  services  therein  in  Welsh.  This  church  was 
opened  for  public  worship  in  August,  1867.  Beyond  these  two  church- 
es, there  was  no  other  church  at  Aberystwith,  and  there  was  not  any- 
church  being  erected  or  being  about  to  be  erected  there,  although,  as 
the  vicar  stated,  he  had  often  talked  with  the  testatrix  respecting  the 
endowment  of  the  AVelsh  church,  and  the  necessity  during  the  sum- 
mer season  of  additional  church  accommodation,  either  by  enlarging 
St.  Michael's,  or  by  building  an  additional  church,  or  by  having  an  ad- 
ditional service  for  visitors  at  the  Welsh  church. 

The  Vice-Chancellor  held  that  the  gift  of  the  residue  was  not  intend- 
ed to  provide  an  endowment,  except  in  the  event  of  a  church  being 
erected  or  in  course  of  erection  at  the  testatrix's  death,  and  that  the 
gift,  therefore,  failed. 

5  Part  of  the  case  is  omitted. 


590  RULE   AGAINST  PERPETUITIES  (Part  4 

From  this  decision  the  Attorney-General  appealed. 

Lord  HatherlEy,  L.  C.  I  entertain  no  doubt  as  to  what  ought  to 
be  done  in  the  present  case.  Very  able  arguments  on  both  sides  have 
been  addressed  to  me  this  morning  with  respect  to  the  application  of 
the  doctrine  of  cy  pres,  but  I  do  not  think  that  tliere  is  any  necessity 
for  going  into  that  question  at  present.  As  far  as  I  can  judge  from 
what  has  been  stated  there  is  a  possibility  of  a  church  being  built  at 
Aberystwith,  and  therefore  I  think  it  is  extremely  probable  that  we 
may  never  arrive  at  the  application  of  that  doctrine  at  all. 

I  think  it  is  plain  in  the  first  place  that  upon  the  true  construction  of 
the  will  the  bequest  must  be  taken  to  be  a  bequest  for  the  purpose  of 
aiding  in  the  erection  of  any  additional  church  in  Aberystwith.  I  differ 
so  far  from  the  Vice-Chancellor,  who  thought  that  the  testatrix  in- 
tended to  confine  her  executors  to  the  case  of  an  actual  church  erected 
and  requiring  endowment,  or  a  church  in  progress  of  erection  at  the 
time  of  her  death. 

As  to  the  difficulty  from  the  possible  remoteness  of  the  time  when 
her  intention  can  be  carried  into  effect,  I  think  the  case  of  the  Attorney- 
General  V.  Bishop  of  Chester,  1  Bro.  C.  C.  444,  is  a  complete  answer. 
In  that  case  the  ver}^  point  which  arises  here  was  suggested.  There 
was  a  sum  of  £1,000  left  for  a  good  charitable  purpose,  namely,  for  the 
purpose  of  establishing  a  bishop  in  the  king's  dominions  in  America. 
There  was  no  bishop  in  America.  The  sum,  being  only  £1,000,  was 
not  very  likely  in  itself  to  be  sufficient  to  establish  a  bishop.  Nothing 
could  be  more  remote,  or  less  likely  to  happen  within  a  reasonable  pe- 
riod, than  the  appropriation  of  that  fund  to  that  particular  object.  But 
the  court  did  not  direct  any  application  of  the  fund  According  to  the 
cy  pres  doctrine ;  it  would  not  allow  the  fund  to  be  dealt  with  immedi- 
ately, but  directed  the  fund  to  remain  in  hand  for  a  time,  with  liberty 
to  apply,  because  it  was  not  known  whether  any  bishop  would  be  es- 
tablished. But  that  the  court  would  continue  to  retain  it  forever,  wait- 
ing until  a  bishop  should  be  appointed,  I  think  is  a  very  doubtful  propo- 
sition. 

There  have  been  numerous  cases  of  gifts  to  charities  where  an  in- 
quiry has  been  directed,  whether  there  is  anything  in  esse  to  which  the 
fund  of  the  testator  can  be  properly  applied  so  as  to  carry  out  his 
wishes.  One  of  the  last  of  such  cases  was  that  cited  by  Mr.  Bristowe, 
Russell  v^_Jackson,  10  Hare,  204,  in  which  the  testator  wished  a 
socialist  school  to  be  established.  The  court  held  the  gifTas  to  the  inv- 
purFT5CTs6naTtyl:o  be  bad  under  the  Statute  of  Mortmain.  It  then  di- 
rected^n  inquiry  what  the  principles  of  socialism  were,  in  order  to  see" 
whether  they  contained  anything  really  objectionable.  A ^sirmlaf~in- 
quiry  appears  to  have  been  directed  in  the  case  of  Thompson  v.  Thomp^ 
son,  1  Coll.  395,  where  the  testator  left  a  fund  for  the  appointment  of 
a  professor  to  teach  his  opinions  as  contained  in  the  testator^j)rinted 
books^  which  nobody  at  that  time  had  read.  It  being  found  on  in- 
quiry that  there  was  nothing  contrary  to  morality  or  religion  in~the 


Ch.  8)  CHARITIES  591 

opinions  contained  in  those  books,  the  trust  was  ordered  by  the  court 
to  be^^rned_TiiTt7  ^ 

The  course,  therefore,  that  seems  to  me  the  correct  one,  upon  the 
first  part  of  the  case,  is  to  direct  an  inquiry  at  chambers  whether  or  not 
the  funds  which  are  effectually  given  to  the  trustees  for  the  purpose 
of  aiding  in  erecting  or  endowing  a  church  at  Aberystwith,  or  any  and 
what  part  thereof,  can  be  so  laid  out  and  employed. 


CHAMBERLAYNE  v.  BROCKETT. 

(Court  of  Chancery,  1872.     L.  R.  8  Ch.  206.) 

This  was  an  appeal  by  the  Attorney-General  from  a  decision  of  the 
Master  of  the  Rolls. 

Sarah  Chamberlayne,  by  will  dated  the  13th  of  January,  1858,  after 
giving  various  legacies,  mostly  for  charitable  purposes,  proceeded  as 
follows : 

"As  I  consider  all  my  family  the  same  to  me,  I  wish  to  make  no 
difference,  and  as  I  could  not  select  any  of  them  that  I  confidently 
could  feel  would  not  spend  my  money  on  the  vanities  of  the  world,  as 
a  faithful  servant  of  the  Lord  Jesus  Christ  I  feel  I  am  doing  right  in 
returning  it  in  charity  to  God  who  gave  it.  I  therefore  give  and  be- 
queath all  the  rest,  residue,  and  remainder  of  my  personal  estate  and 
effects,  whatsoever  and  wheresoever,  after  payment  of  all  my  just 
debts,  my  funeral  expenses,  and  legacies  as  aforesaid,  unto  my  said 
brothers,  William  Chamberlayne,  John  Chamberlayne,  and  H.  T. 
Chamberlayne,  and  to  the  survivors  and  survivor  of  them,  and  to  the 
executors,  administrators,  and  assigns  of  such  survivor  upon  trust  that 
they  do  and  shall,  with  all  convenient  expedition  after  my  death,  invest 
the  same  and  every  part  thereof  in  the  stock  called  £3  per  Cent.  Con- 
solidated Bank  Annuities  after  selling  such  parts  of  the  said  residue 
as  may  be  necessary  for  that  purpose ;  and  my  will  and  desire  is  that 
the  said  trustees  do  and  shall  stand  possessed  of  the  said  residue  so  in- 
vested as  aforesaid  upon  the  trusts,  intents,  and  purposes  following: 
(that  is  to  say)  upon  trust  to  pay  out  of  the  annual  dividends  or  pro- 
ceeds of  the  said  residue  so  invested  as  aforesaid  the  sums  following, 
yearly  and  every  year  forever  (that  is  to  say) :  "  [Here  followed  a  list 
of  small  annual  payments].  "And  my  further  will  and  desire  is,  when 
and  so  soon  as  land  shall  at  any  time  be  given  for  the  purpose  as  here- 
inafter mentioned,  that  an  almshouse  or  almshouses,  consisting  of  ten 
rooms  with  suitable  appendages  for  ten  poor  persons,  should  be  built 
in  the  parish  of  Southam,  in  the  county  of  Warwick;  also  an  alms- 
house or  almshouses,  consisting  of  five  rooms  with  suitable  appendages 
for  five  poor  persons,  in  the  parish  of  Long  Itchington,  in  the  county 
of  Warwick"  [similar  directions  as  to  two  other  almshouses],  "all  to 
be  built  in  a  plain  substantial  manner,  no  expensive  ornament  what- 


592  RULE   AGAINST  PERPETUITIES  (Part  4 

ever."  [Here  followed  directions  as  to  the  inmates.]  "And  my  will 
and  desire  further  is,  that  the  surplus  remaining  after  building  the 
almshouses  aforesaid  should  be  appropriated  to  making  weekly  allow- 
ances to  the  inmates  of  each ;  and  my  will  and  desire  is  that  each  room 
in  the  several  almshouses  aforesaid  should  be  supplied  with  a  suitable 
Bible  of  a  large  type." 

The  above  trustees  were  named  executors. 

William  and  John  Chamberlayne  predeceased  the  testatrix.  Henry 
Thomas  Chamberlayne,  the  sole  surviving  executor,  proved  the  will, 
and  filed  his  bill  against  the  other  next  of  kin  for  the  administration 
of  the  personal  estate.  The  Attorney-General  was  served  with  the  de- 
cree. The  residuary  estate,  which  consisted  of  pure  personalty,  was 
found,  on  taking  the  account,  to  amount  to  upwards  of  i  10,000.  The 
Master  of  the  Rolls,  on  the  case  coming  on  for  further  consideration, 
held  that  the  residue  was  not  effectually  given  in  charity,  but  was  di- 
visible among  the  next  of  kin  of  the  testatrix.** 

Lord  Selborne,  L.  C.  The  only  question  which  appears  to  us  to 
require  decision  in  this  case  is  whether,  upon  the  true  construction  ot 
the  will,  a  trust  for  charitable  purposes  of  the  whole  residuary  per- 
sonal estate  was  constituted  immediately  upon  the  death  of  the  testa- 
trix, or  whether  the  charitable  trust  as  to  the  residue  not  required  to 
make  the  fixed  payments  mentioned  before  the  directions  as  to  the 
almshouses  and  almspeople  was  conditional  upon  the  gift  of  land  at 
an  indefinite  future  time  for  the  erection  of  almshouses  thereon.  If 
there  was  an  immediate  gift  of  the  whole  residue  for  charitable  uses, 
the  authorities  mentioned  during  the  argument  (Attorney-General  v. 
Bishop  of  Chester,  1  Bro.  C.  C.  444 ;  Henshaw  v.  Atkinson,  3  Madd. 
306 ;  and  Sinnett  v.  Herbert,  Law  Rep.  7  Ch.  232 ;  to  which  may  be 
added  Attorney-General  v.  Craven,  21  Beav.  392)  prove  that  such  gift 
was  valid,  and  that  there  was  no  resulting  trust  for  the  next  of  kin 
of  the  testatrix,  although  the  particular  application  of  the  fund  di- 
rected by  the  will  would  not  of  necessity  take  effect  within  any  as- 
signable limit  of  time,  and  could  never  take  effect  at  all  except  on  the 
occurrence  of  events  in  their  nature  contingent  and  uncertain.  When 
personal  estate  is  once  effectually  given  to  charity,  it  is  taken  entirely 
out  of  the  scope  of  the  law  of  remoteness.  The  rules  against  per- 
petuities (as  was  said  by  Lord  Cottenham  in  Christ's  Hospital  v.  Grain- 
ger, 1  Mac.  &  G.  464)  "are  to  prevent,  in  the  cases  to  which  they  ap- 

6  Lord  Eomilly,  M.  R.,  after  giving  his  reason  for  holding  some  of  the 
legacies  void,  continued: 

I  am  of  opinion  that  the  gift  of  the  residue  is  also  void,  not  as  being  af- 
fected by  the  INIortmain  Act,  but  as  being  a  perpetuity.  Suppose  a  testator 
gave  £1,000  to  be  accumulated  until  some  heir  of  John  Jones  should  select  a 
descendant  of  A.  B.  to  receive  it.  That  would  be  void  on  the  ground  of  per- 
petuity, because  an  indefinite  period  might  elapse  before  the  selection  was 
made.  So  here  there  is  no  gift  in  charity  unless  and  until  some  person  gives 
land  for  the  purpose  of  the  charity,  which  may  not  happen  for  an  indclinite 
period.  I  am,  therefore,  of  opinion  that  there  is  an  intestacy  as  to  the  res- 
iilue. 


Ch.  8)  CHARITIES  593 

ply,  property  from  being  inalienable  beyond  certain  periods."  But 
those  rules  do  not  prevent  pure  personal  estate  from  being  given  in 
perpetuity  to  charity ;  and  when  this  has  once  been  effectually  done, 
it  is  (to  use  again  Lord  Cottenham's  language)  "neither  more  nor  less 
alienable"  because  there  is  an  indefinite  suspense  or  abeyance  of  its 
actual  application  or  of  its  capability  of  being  applied  to  the  particular 
use  for  which  it  is  destined.  If  the  fund  should,  either  originally  or 
in  process  of  time,  be  or  become  greater  in  amount  than  is  necessary 
for  that  purpose,  or  if  strict  compliance  with  the  wishes  and  directions 
of  the  author  of  the  trust  should  turn  out  to  be  impracticable,  this  court 
has  power  to  apply  the  surplus,  or  the  whole  (as  the  case  may  be)  to 
such  other  purposes  as  it  may  deem  proper,  upon  what  is  called  the 
cy  pres  principle. 

On  the  other  hand,  if  the  gift  in  trust  for  charity  is  itself  conditional 
upon  a  future  and  uncertain  event,  it  is  subject,  in  our  judgment,  to 
the  same  rules  and  principles  as  any  other  estate  depending  for  its  com- 
ing into  existence  upon  a  condition  precedent.  If  the  condition  is  never 
fulfilled,  the  estate  never  arises ;  if  it  is  so  remote  and  indefinite  as  to 
transgress  the  limits  of  time  prescribed  by  the  rules  of  law  against 
perpetuities,  the  gift  fails  ab  initio. 

We  agree  with  what  was  said  by  the  Master  of  the  Rolls  in  Cherry 
V.  Mott,  1  My.  &  Cr.  132,  that  "there  may  no  doubt  be  a  conditional 
legacy  to  a  charity  as  well  as  for  any  other  purpose ;  "  and  we  think 
that  the  question  wdiether  this  is  so  or  not  ought  to  be  determined,  like 
all  other  questions  of  construction,  by  the  application  of  the  ordinary 
rules  of  interpretation  to  the  language  of  each  particular  will.  We 
do  not  assent  to  the  suggestion  made  by  the  Solicitor-General  that 
Cherry  v.  Mott,  and  other  cases  of  the  same  class  which  have  followed 
it,  were  ill-decided.  If  w'e  thought  (as  appears  to  have  been  the  view 
of  the  Master  of  the  Rolls)  that  the  case  now  before  us  was  really  the 
same  as  if  the  testatrix  had  left  her  residuary  personal  estate  to  de- 
volve on  her  next  of  kin,  subject  to  a  contingent  gift  to  trustees  "when 
and  so  soon  as  land  shall  at  any  time  hereafter  be  given  for  the  pur- 
pose," for  the  erection  of  almshouses  upon  the  land  to  be  so  given,  and 
the  maintenance  of  almspeople  therein,  we  should  probably  have  con- 
curred in  the  conclusion  of  his  Lordship  that  such  a  contingent  gift 
to  trustees  (although  for  a  charity),  having  the  effect  of  rendering  the 
property  inalienable  during  the  whole  continuance  of  the  preceding 
non-charitable  estates,  must,  in  order  to  be  valid,  necessarily  vest  with- 
in the  same  limits  of  time  as  if  the  trustees  had  taken  the  residue  (upon 
the  same  condition)  for  their  own  benefit,  or  for  any  other  than  char- 
itable objects. 

If,  therefore,  we  differ  (as  we  are  compelled  to  do)  from  the  decree 
at  the  Rolls,  it  is  not  on  any  principle  of  law,  but  upon  the  construc- 
tion of  this  particular  will.  In  this  case  the  testatrix  expressly  declares 
her  intention  to  "return"  her  whole  residuary  estate  "in  charity  to  God 
4  Kales  Pbop. — 38 


594  RULE  AGAINST  PERPETUITIES  (Part  4 

who  gave  it ;  "  and  she  "therefore"  gives  and  bequeaths  it  immediately 
upon  her  death  to  trustees  to  invest  the  whole  in  Consols,  proceeding 
to  direct  various  specified  payments  to  be  made  out  of  the  trust  fund 
so  created,  and  adding  the  directions  on  which  the  present  question 
arises  for  the  erection  of  almshouses  and  the  maintenance  of  almspeo- 
ple  therein  "when  and  so  soon  as  land  shall  at  any  time  hereafter  be 
given  for  that  purpose."  According  to  Green  v.  Ekins,  2  Atk.  473 ; 
Hodgson  V.  Lord  Bective,  1  H.  &  M.  376,  397,  and  other  similar  cases, 
a  gift  of  the  residue  of  personal  estate  carries  with  the  corpus  the  whole 
income  arising  therefrom  and  not  expressly  disposed  of  as  income,  or 
expressly  directed  to  be  accumulated,  from  the  day  of  the  death  of  the 
testator.  Here,  therefore,  nothing  is  undisposed  of,  there  is  no  result- 
ing trust  for  the  next  of  kin.  The  intention  in  favor  of  charity  is  ab- 
solute, the  gift  and  the  constitution  of  the  trust  is  immediate ;  the  only 
thing  which  is  postponed  or  made  dependent  for  its  execution  upon 
future  and  uncertain  events  is  the  particular  form  or  mode  of  charity 
to  which  the  testatrix  wished  her  property  to  be  applied.  Taking  this 
view  of  the  proper  construction  of  the  will,  we  hold  the  present  case 
to  be  completely  governed  by  Attorney-General  v.  Bishop  of  Chester, 
Sinnett  v.  Herbert,  and  the  other  authorities  of  that  class ;  and  we  pro- 
pose accordingly  to  vary  the  decree  of  tlie  Master  of  the  Rolls  by  a 
declaration  that  the  residue  of  the  personal  estate  of  the  testatrix 
(which  we  assume  to  be  all  pure  personalty)  is  well  given  to  charity, 
and  by  directing  an  inquiry  similar  in  principle  to  that  in  Sinnett  v. 
Herbert,  whether  any  land  has  been  given  or  legally  rendered  available 
for  the  purposes  intended  by  the  testatrix,  further  consideration  being 
reserved.  The  costs  of  all  parties  of  the  suit  and  of  the  appeal  will  be 
paid  out  of  the  residuary  estate,  and  the  deposit  will  be  returned. 
The  Lords  Justices  concurred. 


In  re  LORD  STRATHEDEN. 
(Chancery  Division.     L.  R.   [1894]  3  Ch.  265.) 

William  Lord  Stratheden  and  Campbell,  by  his  will,  dated  the  16th 
of  January,  1892,  appointed  the  defendant  and  two~other  persons  his 
executors,  and  thereby  he  bequeathed  "an  annuity  of  £100  to  be  pro^- 
vided  to  the  Central  London  Rangers  on  the  appointment  of  the  next 
lieutenaiit:£olQnel." 

The  testator  died  on  the  21st  of  January,  1893,  and  his  will  was 
proved  by  the  defendant  alone,  who  was  the  sole  residuary  legatee 
under  the  will. 

The  plaintiff  was  the  lieutenant-colonel  of  the  22d  Middlesex  Rifle 
Volunteer  Corps,  otherwise  known  as  "The  Central  London  Rang- 
ers," which  position  he  held  both  at  the  date  of  the  will  and  of  the 
death  of  the  testator,  and  the  property  of  the  said  volunteer  corps 


Ch.  8)  CHARITIES  595 

was  vested  in  him.  The  plaintiff  claimed  a  declaration  that  the  said 
annuity  was  a  valid  bequest,  and  was  vested  in  him  as  the  command- 
ing officer  of  the  said  volunteer  corps,  and  that  a  sufficient  part  of  the 
testator's  estate  might  be  appropriated  to  provide  for  the  same. 

The  defendant,  by  his  statement  of  defence,  alleged  that  the  bequest 
was  void  for  uncertainty,  and  also  because  it  infringed  the  rule  against 
perpetuities. 

RoMER,  J.  I  am  sorry  I  do  not  see  my  way  to  uphold  the  validity 
of  this  gift.  As  was  pointed  out  by  Lord  Selborne  in  Chambcrlayne 
v.  Broc'kett,  Law  Rep.  8  Ch.  211,  "If  the  gift  in  trust  for  charity  is 
itself  cojiditiojial^upon  a  future  and^uncertain  event,  it  is  subject,  in 
our  judgment,  to  the  same  rules  and  principles  as  any  other  estate  de- 
pending for  its  coming  into  existence  upon  a  condition  precedent.  If 
the  condition  is  never  fulfilled,  the  estate  never  arises ;  if  it  is  so  re- 
mote and  indefinite  as  to  transgress  the  limits  of  time  prescribed  by 
theru!?s~oTTaw  against  perpetuities,  the  gift  fails  ab  initio."  Apply- 
ing  that  to  the  present  case,  I  look  to  see,  in  the  first  place,  Is  this 
gift  conditional,  and  what  is  the  condition?  Well,  unfortunately,  it 
appears  to  me  that  it  clearly  is  conditional.  The  annuity  is  not  to  be 
paid  except  on  the  appointment  of  the  next  Heutenant-colonel ;  and  if 
a  lieutenant-colonel  is  not  appointed,  the  annuity  is  not  to  commence 
or  be  paid.  That  being  so,  it  being  conditional,  can  I  say  that  the 
condition  must  arise  within  the  time  that  is  prescribed  by  the  rules  of 
law  against  perpetuities  ?  I  am  sorry  to  say  I  cannot.  If  I  could  con- 
strue it  as  a  gift  on  the  death  of  the  present  lieutenant-colonel,  the 
difficulty  would  be  got  over ;  but  I  do  not  see  my  way  to  construe  the 
will  so.  It  is  a  gift  conditional  on  the  appointment  of  the  next  lieu- 
tenant-colonel. Now,  the  next  lieutenant-colonel  may  not  be  appoint- 
ed for  some  time  after  the  death  of  the  present  commanding  officer ; 
he  never  may  be  appointed  at  all ;  and,  consequently,  it  appears  to  me 
that  this  is  a  gift  conditional  upon  an  event  which  transgresses  the 
limit  of  time  prescribed  by  the  rules  of  law  against  perpetuities. 
Therefore,  reluctantly,  I  feel  myself  bound  to  hold  that  this  gift  fails, 
and  I  must  dismiss  the  action,  but  I  do  so  without  costs.' 


MARTIN  V.  MARGHAM. 
(Court  of  Chancery,  1844.     14  Sim.  230.) 

Samuel  Butler,  by  his  will  dated  in  May  1821,  bequeathed  the  whole 
of  his  property  to  trustees  in  trust  to  convert  the  same  into  money 
and  to  invest  the  proceeds  in  the  three  per  cents,  and  after  paying  cer- 
tain annuities,  to  add  the  dividends  to  the  capital  until  it  should  pro- 

7  See,  also.  Worthing  Corp.  v.  Heather,  [1906]  2  Ch.  532 ;  Girard  Trust 
Co.  V.  Russell.  179  Fed.  446,  102  C.  C.  A.  592  (1910). 


596  RULE   AGAINST   PERPETUITIES  (Part  4 

duce  an  income  of  £600  a  year ;  when  he  hoped  that  every  five  years' 
receipt  of  that  income  would  produce  an  increase  of  income  of  £150  a 
year;  and  his  will  was  that  every  such  increase  of  income  should  be 
appropriated  as  he  should  thereafter  specify,  for  the  benefit  of  the 
parish  charity-schools  ot  this  country,  in  the  following  order,  namely, 
the  first  school  to  receive  the  benefit,  was  to  be  St.  Ann's,  Limehouse ; 
the  second,  St.  Paul's,  Covent  Garden;  the  third,  St.  Mary's,  Sand- 
wich ;  the  fourth,  St.  Paul's,  Shadwell.  The  testator  then  named  nine 
other  parishes,  and  left  it  to  his  trustees  to  fix,  appoint  and  establish, 
in  regular  rotation,  the  remaining  parish  charity-schools,  taking  al- 
ways the  nearest  parish  to  the  last  establishment. 

The  testator  died  in  May  1837. 

A  suit  for  the  administration  of  his  estate  came  on  for  further  di- 
rections. 

The  Vick-Chancellor  [Sir  Lancelot  Shadwell].  Although 
the  particular  mode  in  which  the  testator  meant  the  benefits  to  be 
doled  out  to  the  objects  of  his  bounty  cannot  take  effect,  yet,  as  there 
is,  confessedly,  a  devotion  of  his  personal  estate  to  charitable  purpos- 
es, my  opinion  is  that  his  next  of  kin  have  no  claim  at  all  to  his  prop- 
erty. I  conceive  that,  if  a  testator  has  expressed  his  intention  that  his 
personal  estate  shall  be,  in  substance,  applied  for  charitable  purposes, 
the  particular  mode  which  he  may  have  pointed  out  for  efifecting  those 
purposes,  has  nothing  to  do  with  the  question  whether  the  devotion 
for  charitable  purposes  shall  take  place  or  not :  and  that,  whatever 
the  difficulty  may  be,  the  court,  if  it  is  compelled  to  yield  to  circum- 
stances, will  carry  the  charitable  intention  into  effect  through  the 
medium  of  some  other  scheme. 

I  shall,  therefore,  declare,  that  subject  to  the  annuities,  there  is  a 
good  gift  of  the  residue  to  charitable  purposes  to  be  carried  into  effect 
according  to  a  scheme  to  be  settled  by  the  master;  and  I  shall  direct 
the  master,  in  settling  the  scheme,  to  have  regard  to  the  objects  speci- 
fied in  the  will.* 

8  Part  of  the  case,  relating  to  another  point,  is  here  omitted. 

See,  also,  In  re  Swain,  L.  R.  [1905]  1  Ch.  669;  Odell  v.  Odell,  10  Allen 
(Mass.)  1  (1S65). 

Effect  on  a  trust  for  accumulation  where  the  ultimate  gift  is  void  for 
remoteness,  Southampton  v.  Hertford,  2  Ves.  &  B.  54  (1S13) ;  Curtis  v.  Lukin, 
5  Beav.  147  (1842). 

On  the  status  of  a  trust  for  accumulation  for  a  charity  where  the  gift  to 
charity  is  valid,  Wharton  v.  Masterman,  [1895]  App.  Cas.  186  (H.  &  L.) ;  St. 
Paul's  Church  v.  Attorney  General,  164  Mass.  188,  41  N.  E.  231  (1895). 


PART  V 

ILLEGAL  CONDITIONS  AND  RESTRAINTS 


CHAPTER  I 
FORFEITURE  OF  ESTATES  OF  INHERITANCE 


SECTION  1.— ON  ALIENATION 


LIT.  §  360 :  Also,  if  a  feoffment  be  made  upon  this  condition,  that 
the  feoffee  shall  not  alien_tlie  land  to  any,  this  condition  is  void,  be- 
cause when  a  man  is  enfeoffed  of  lands  or  tenements,  he  hath  power  to 
alien  them  to  any  person  by  the  law.  For  if  such  a  condition  should 
be  good,  then  the  condition  should  oust  him  of  all  the  power  which  the 
law  gives  him,  which  should  be  against  reason,  and  therefore  such  a 
condition  is  void.^ 


CO.  LIT.  223  a:  "Also,  if  a  feoffment  be  made,  &c."  And  the 
like  law  is  of  a  devise  in^fee  upon  condition  that  the  devisee  shall  not 
alien,  the  condition  is  void,  and  so  it  is  of  a  grant,  release,^onfirma- 
tion,  or  any  other  conveyance  whereby  a  fee  simple  doth  pass.  For  it 
is  absurd  and  repugnant  to  reason  that  he,  that  hath  no  possibility  to 
have  the  land  revert  to  him,  should  restrain  his  feoffee  in  fee  simple  of 
all  his  power  to  alien.  And  so  it  is  if  a  man  be  possessed  of  a  lease 
for_years,  or  of  a  horse,  or  of  any  other  chattel  reaj_or  personal,  and 
giveo]rseTrhts~WlTole  mterest  or'property  therein  upon  condition  that 
the  donee  or  vendee  shall  not  alien  the  same,  the  same  is  void,  because 
his  whole  interest  and  property  is  out  of  him,  so  as  he  hath  no  possi- 
bility of  a  reverter,  and  it  is  against  trade  and  traffic,  and  bargaining 

1  Co.  Lit.  206b:  "If  a  man  make  a  feoffment  in  fee  upon  condition  that 
he  shall  not  alien,  this  condition  is  repugnant  and  against  law,  and  the  state 
of  the  feoffee  is  absolute  (whereof  more  shall  be  said  in  his  proper  place). 
But  if  the  feoffee  be  bound  in  a  bond,  that  the)  feoffee  or  his  heirs  shall  not 
alien,  this  is  good,  for  he  may  notwithstanding  alien  if  he  will  forfeit  his 
bond  that  he  himself  hath  made." 

See,  however.  Gray,  Restraints  on  Alienation  (2d  Ed.)  §  19,  note  1,  and  §  77. 

4  Kales  Pbop.  (597) 


598  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  5 

and  contracting  between  man  and  man :  and  it  is  withm  the  reason  of 
our  author  that  it  should  ouster  him  of  all  power  given  to  him.  Ini- 
quum  est  ingenuis  hominibus  non  esse  liberam  rerum  suarum  aliena- 
tionem ;  and  rerum  suarum  quilibet  est  moderator,  et  arbiter.  And 
again,  regulariter  non  valet  pactum  de  re  mea  non  alienanda.  But 
these  are  to  be  understood  of  conditions  annexed  to  the  grant  or  sale 
itself  in  respect  of  the  repugnancy,  and  not  to  any  other  collateral 
thing,  as  hereafter  shall  appear.  Where  our  author  putteth  his  case 
of  a  feoffment  of  land,  that  is  put  but  for  an  example :  for  if  a  man  be 
seised  of  a  seigniory,  or  a  rent,  or  an  advowson,  or  common,  or  any 
other  inheritance  that  lieth  in  grant,  and  by  his  deed  granteth  the  same 
to  a  man  and  to  his  heirs  upon  condition  that  he  shall  not  alien,  this 
condition  is  void.  But  some  have  said  that  a  man  may  grant  a  rent 
chargejievyly  created  out  oTIands  to~alTTaiT~ancrto  his  heirs  upon  con- 
dition  that  he  shalTnotalien  that,  that  is  good,  because  the  rent  is  of 
his  own  creation ;  buttliis  is  against  the  reason  and  opinion  of  our 
author,  and  against  the  height  and  purity  of  a  fee^  simplp7 

A  fnan  beforethe  Staruie  ot  Uuia  emptqres  terrarum  might  have 
made  a  feoffment  in  tee,  and  added  further^that  if  he  or  his  heirs  did 
alien  without  license,  tha^he  should  pay  a  fine,  then  this  had  been 
good.  And  so  it  is  said,  that  then  the  lord  might  have  restrained  the 
alienation  of  his  tenant  by  condition,  because  the  lord  had  a  possibility 
of  reverter;  and  so  it  is  in  the  king's  case  at  this  day, because  he  may 
reserve'a  tenure  toliimseTT^  "'  ^' 

If  A.  be  seised  of  Black  Acre  in  fee,  and  B.  enfeoff eth  him  of  White 
Acre  upoii  conditiorTtKat^.^shalljTo;^  aHen  BlaclTAcre,  the  condition 
is  good,*  for  the  condition  is  annexed  to  other  Tand,  and  ousteth  not 


the  feoTfee  of  his  power  to  alien  the  lamTwrTereof  the  teoffment~ls 
mad^Tand  so  no  repugnancy  to  the^state  passedlSy  theTeoffment;  and 
soltls  of  gifts,  or  sale  of  chattefs  real  bf]personal. 


LIT.  §  361 :  But  if  the  condition  be^^nch^that  the  feoffee  shall,  not 
alien  to  such  a  one,  naming  his  name,  or  to  any  of  his  heirs,  or  of 
the  issues  of  svich  a  one,  &c.,  or  the  like,  which  conditions  do  not  take 
away  all  power  of  alienation  from  the  fenffpe,  Rrc,  then  such  condition 
is  good. 

2  Gray,  Restraints  on  Alienation  (2d  Ed.)  §§  i:3-30.  See,  also,  De  Peyster 
V.  Michael,  6  N.  Y.  467,  57  Am.  .Dec.  470  (1852),  where  the  land  was  charged 
with  a  sum  of  money  upon  its  alienation. 

3  Gray,  Restraints  on  Alienation  (2d  Ed.)  §  21,  note  1. 

4  See  Camp  v.  Cleary,  76  Va.  140,  where,  however,  the  lands  correspond- 
ing to  Blackacre  and  Whiteacre  were  passed  by  the  same  deed. 


Ch.  1)         FORFEITURE  OF  ESTATES  OF  INHERITANCE  599 

CO.  LIT.  223  a,  223  b :  If  a  feoffment  in  fee  be  made  upon  condi- 
tion that  the  feoffee  shall  not  enfeof?  IT^S.  or  any  of  his  heirs  or  issues, 
etc.,  this  is  goo^T^Tor  he  doth  not  restrain  the  feoffee  of  all  his  power: 
the  reason  Fere  yielded  by  our  author  is  worthy  of  observation.  And 
in  this  case  if  the  feoffee  enfeoff  I.  N.  of  intent  and  purpose  that  he 
shall  enfeoff  I.  S.,  some  hold  that  this  is  a  breach  of  the  condition,  for 
quando  aliquid  prohibetur  fieri,  ex  directo  prohibetur  et  per  obliquum. 

If  a  fcofifnient  be_made  upon,  condition-lhat  the_feoffee  shall  not 
alien  in  mortmain,  this  is  good^_because  such  alienation  is  pfbliibtted 
by  (aw,  andl^gularly  whatsoever  is  prohibited  by  the  law,  maylBe  pfD- 
hibited  by  condition,  be  it  malum  prohibitum,  or  malum  in  se.  In 
ancient  deeds  of  feoffment  in  fee  there  was  most  commonly  a  clause, 
quod  licitum  sit  donatori  rem  datam  dare  vel  vendere  cui  voluerit, 
exceptis  viris  religiosis  et  judseis. 


LIT.  §  362 :  Also,  if  lands  be  given  in  tail  u^oji  condidQlUihat  the 
tenant  in  tail  nor  his  heirs  shall  not  alien  in  fee,  nor  in  tail,  nor  for 
term  of  another^  hfe,  FiiFohTy  for  thefr  ownjives.  &c..  such  condition 
is  good.  And  the  reason  is,  for  that  when  he  maketh  such  alienation 
and  discontinuance  of  the  entail,  he  doth  contrary  to  the  intent  of  the 
donoi^Jor  vvhich  the  Statute  of  W.  2,  cap.  TTwas^ade,  b^Jadikh  Stat- 
ute the  estates  in  tail  are  ordained. 


CO.  LIT.  223  b,  224  a :  Note  here,  the  double  negative  in  legal  con- 
struction shall  not  hinder  the  negative,  viz.,  sub  conditione  quod  ipse 
nee  haeredes  sui  non  alienarent.  And  therefore  the  grammatical  con- 
struction is  not  always  in  judgment  of  law  to  be  followed, 

"But  only  for  their  own  lives,  &c."  And  yet  if  a  man  make  a  gift 
in  tail,  upon  condition  that  he  shall  not  make  a  lease  for  his  own  life, 
albeit  the  state  be  lawful,  yet  the  condition  is  good,*^  because  the  re- 
version isinthe_donor.  As  if  a  man  make  a  lease  for  lile  or  years 
upon  condition,  that  they  shall  not  grant  over  their  estate  or  let  tlie 
land  to  others,  this  is  good,  and  yet  the  grant  or  lease  should  be  lawful. 
If  a  man  make  a  gift  in  tail  upon  condition  that  he  shall  not  make  a 

6  Accord :    Overton  v.  Lea,  108  Tenn.  505,  554-556,  68  S.  W.  250. 

Some  cases  have  gone  further,  n"^^  ^i^^i'""  th;|f,  ^y^^'^'"'^  rrovi^^ion  of  forfeiture 
was  upon  alienation  to  any  one  except  a  small  class,  it  was  valid.  Doe  v. 
Pearson,  6  East,  I'i'S  (1805) ;   in  re  Macleay  L.  R.  20  Eq.  186  (187")." 

See  Attwater  v.  Attwater,  18  Beav.  330  (1853) ;  Gallinger  v.  Farlinger,  6 
U.  C.  C.  P.  512  (1857).     See,  also,  In  re  Rosher,  26  Cli.  Div.  801  (1884). 

c  But  in  Mildniay's  Case,  6  Co.  40a,  42b,  43a,  it  was  said:  "So  if  a  man 
makes  a  gift  in  tail,  on  condition  that  he  shall  not  make  a  lease  for  his  own 
life,  it  is  void  and  repugnant." 

See  In  re  Rosher,  L.  R.  26  Ch.  D.  801. 


600  ILLEGAL   CONDITIONS   AND   RESTRAINTS  (Part   5 

lease  for  three  lives  or  21  years  according  to  the  Statute  of  32  H.  8,  the 
condition  is  good,  for  the  Statute  doth  give  him  power  to  make  such 
leases,  which  may  be  restrained  by  condition,  and  by  his  own  agree- 
ment ;  for  this  power  is  not  incident  to  the  estate,  but  given  to  him 
collaterally  by  the  Act,  according  to  that  rule  of  law,  quilibet  potest 
renunciare  juri  pro  se  introducto. 

"When  he  maketh  such  alienation  and  discontinuance  of  the  en- 
tail." And  therefore  if_a  gift  in  tail  be  made  upon  condition,  that  the 
donee,  &c..  shall  not  alien,  this  condition  is  good  to  some  mtents,  ancl 


void  to  some ;  for,  as~to  all  those  alienations  which  amount  to  any  dis- 
coi^tinuance  of  the  estate  tail~(as  LittleToiniere  sp^aEeth ;)  oT  Is 
against  tHe~STaLLiLe  uf  Westatinstor  2,  the  corrditionTs  good  witnoilt 
quesjtiQnTJ  But  as  tu  a  Luii««Ott-^recovery  the  comhtion  is  void,Jbe- 
cause  this  is  no  discontinuance,  but  a  bar,  and  this  common  recovery 
is  not  restrained  by  the  said  Statute  of  W.  2.  Ami  theretore~such  a 
condition  is  repugnant  to  the  estate  tail ;  for  it  is  to  be  observed,  that 
to  this  estate  tail  there  be  divers  incidents.  First,  to  be  dispunished 
of  waste.  Secondly,  that  the  wife  of  the  donee  in  tail  shall  be  endowed. 
Thirdly,  that  the  husband  of  a  feme  donee  after  issue  shall  be  tenant 
by  the  curtesy.  Fourthly,  that  tenant  in  tail  may  suffer  a  common  re- 
covery :  and  therefore  if  a  man  make  a  gift  in  tail,  upon  condition  to 
restrain  him  of  any  of  these  incidents,  the  condition  is  repugnant  and 
void  in  law.  And  it  is  to  be  observed,  that  a  collateral  warranty  or 
a  lineal  with  assets  in  respect  of  the  recompense,  is  not  restrained  by 
the  Statute  of  Donis  conditionalibus,  no  more  is  the  common  recovery 
in  respect  of  the  intended  recompense.  And  Littleton,  to  the  intent 
to  exclude  the  common  recovery,  saith,  such  alienation  and  discontinu- 
ance, joining  them  together. 

If  a  man  before  the  Statute  of  Donis  conditionalibus  had  made  a 
gift  to  a  man  and  to  the  heirs  of  his  body,  upon  condition,  that  after 
issue  he  should  not  have  power  to  sell,  this  condition  should  have  been 
repugnant  and  void.  Pari  ratione,  after  the  Statute  a  man  makes  a 
gift  in  tail,  the  law  tacite  gives  him  power  to  suffer  a  common  recov- 
ery ;  therefore  toadda  condition,  that  he  shall  have  no  power  to  suf- 
fer a  common  recovery,  is  repugnant  and  void.^ 

7  In  Anonymous,  1  Leon.  292  (15S4),  "A.  gave  lands  in  tail  to  B.  upon 
condition,  that  if  tlie  donee  or  any  of  liis  heirs  alien,  or  discontinue,  &c.,  the 
land  or  any  part  of  it,  that  then  the  donor  re-enter."  The  donee  had  issue 
two  daughters,  and  died.  One  of  them  levied  a  fine.  It  was  held  that  there 
was  a  forfeiture. 

8  In  Mildmay's  Case,  6  Co.  40a  (lGO.j),  and  in  Mary  Portington's  Case,  10 
Co.  35b  (liHo),  It  was  held  that  a  condition  attached  to  an  estate"  tan  that 
the  tenant  should  not  agree  to  sufFCT  a  rel'overy  or  do  any  act  tcrwgrcts  it  was 
YOuT  See,  also,  Corbet's  Case,~SHir(1599).  In  King  v.  Burchell,  Amb.  379 
(1739).  upon  the  devise  ol  an  estate  tail  to  John  Harris,  the  proviso  "that 
if  John  Harris  or  his  issue,  or  any  of  them,  shall  alienate,  mortgage,  en- 
cumber, or  commit  any  act  or  deed,  whereby  to  alter,  change,  charge,  or  de- 
feat the  beciuests,.shall  pay  or  cause  to  be  paid,  and  he  did  thereby  charge 
the  premises  witrfj  the  payment  of  £2,000  unto  such  person  or  persons,  and 


Ch.  1)         FORFEITURE  OF  ESTATES  OF  INHERITANCE  601 

If  a  man  make  a  feoffment  to  a  baron  and  feme  in  fee,  upon  condi- 
tion,  tha^theyjhall  not  alien,  to  some  intent  this  is  good,  and  to  some 
intent  it  is  void :  for  to  restrain  an  alienation  ^y  feoffment,  or  aliena- 
tidn  by  deed,  it  is  good^  because  such  'an  aTienalion  Ts  tortTous  and 
voidable :  but  to  restrain  their  alienation  by  fine  is  repugnant  and 
void,  because  it  is  lawful  andjinavoidable. 

ITls'said,  that  if  a'man  enfeoff  an  infant  in  fee,  upon  condition  that 
he  shall  not  alien,  this  is  good  to  restrain  alienations  during  his 
minority,  but  not  after  his  full  age. 

It  is  likewise  said,  that  a  man  by  license  may  give  land  to  a  bishop 
and  his  successors,  or  to  an  abbot  and  his  successors,  and  add  a  condi- 
tion to  it,  that  they  shall  not  without  the  consent  of  their  chapter  or 
convent,  alien,  because  it  was  intended  a  mortmain,  that  is,  that  it 
should  forever  continue  in  that  see  or  house,  for  that  they  had  it  en 
auter  droit,  for  religious  and  good  uses. 

"The  Statute  of  W.  2,  cap.  1."  Hereby  it  appeareth,  that  what- 
soever is  prohibited  by  the  intent  of  any  Act  of  Parliament,  may  be 
prohibited  by  condition,  as  hath  been  said. 

his  or  their  heirs,  wlio  could,  should,  or  ought  to  take  next,  by  virtue  or 
means  of  any  of  the  be(iuests  or  limitations."  Held:  "The  proviso  was 
repuenant  to  the  estate."  See,  also,  Stansbury  v.  Hubner,  73  Md.  228,  20 
Atl.  904.  11  L.  R.  A.  204,  25  Am.  St.  Rep.  584. 

In  Mildmny's  Case,  supra,  the  reporter  states:  "And  in  this  case  some 
points  on  great  consideration  were  resolved,  which  were  not  moved  in  Cor- 
bet's case:  1.  That  all  these  perpetuities  were  against  the  reason  and  policy 
of  the  common  law ;  for  at  common  law  all  inheritances  were  fee-simple, 
as  Littleton  saith,  lib.  1.  cap.  Estate-tail ;  and  the  reason  thereof  was.  that 
neither  lords  should  be  defeated  of  their  escheats,  wards,  &c.,  nor  the  farmers 
or  purchasers  lose  their  estates  or  leases,  or  be  evicted  by  the  heirs  of  the 
grantors  or  lessors ;  nor  such  infinite  occasions  of  troubles,  contentions  and 
suits  arise.  But  the  true  policy  and  rule  of  the  common  law  in  this  point, 
was  in  effect  overthrown  by  the  statute  de  donis  conditionalibus,  made  anno 
l.j  E.  1.  which  established  a  general  perpetuity  by  act  of  Parliament,  for 
all  who  had  or  would  make  it,  by  force  whereof  all  the  possessions  of  Eng- 
land in  effect  were  entailed  accordingly,  v/hich  was  the  occasion  and  cause 
of  the  said  and  divers  other  mischiefs.  And  the  same  was  attempted  and 
endeavoured  to  be  remedied  at  divers  Parliaments  and  divers  bills  were  ex- 
hibited accordingly  (which  I  have  seen)  but  they  were  always  on  one  pre- 
tence or  other  rejected.  But  the  truth  was,  that  the  Lords  and  Commons 
knowing  that  their  estates-tail  were  not  to  be  forfeited  for  felony  or  trea- 
son ;  as  their  estates  of  inheritances  were  before  the  said  act,  (and  chiefly 
in  the  time  of  H.  3.  in  the  Barons'  war),  and  finding  that  they  were  not 
answerable  for  the  debts  or  incumbrances  of  their  ancestors,  nor  did  the 
sales,  alienations,  or  leases  of  their  ancestors  bind  them  for  the  lauds  which 
were  entailed  to  their  ancestors,  they  always  rejected  such  bills:  and  the 
same  continued  in  the  residue  of  the  reign  of  E.  1.  and  of  the  reigns  of  E. 
2.  E.  3.  R.  2.  H.  4.  H.  5.  H.  6.  and  till  about  the  12th  year  of  E.  4.  When 
the  Judges  on  consultation  had  amongst  themselves,  resolved,  that  an  es- 
tate tail  might  be  docked  and  barred > by  a  common  recovery;  and  that  by 
reason  of  the  intended  recompen.se,  the  common  recovery  was  not  within  the 
restraint  of  the  said  perpetuity  made  by  the  said  act  of  13  E.  1.  By  which 
it  appears,  that  many  mischiefs  arise  on  the  change  of  a  maxim,  and  rule 
of  the  common  law,  which  those  who  altered  it  could  not  see,  when  they 
made  the  change :  for  rerum  progress.  C)ffendunt  multa,  qute  in  initio  prte- 
caveri  seu  prievideri  non  possunt." 


602  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  5 

BRADLEY  V.  PEIXOTO. 
(Court  of  Chancery,  1797.    3  Ves.  324.) 

This  cause  arose  upon  the  following  disposition  by  the  will  of 
Thomas  Bradley : 

"I  give  and  bequeath  to  my  son  Henrv^_Bradlev  thejdiyidends  aris- 
ing  from  £1620  of  my  bank~stock  Tor  his  support  during  the  term  of  his 
life:  but  at  his  decease  the  said  £1620  bank  stock,  principal  and  inter- 
est, to  devolve  to  his  heirs,  executors,  administrators  and  assigns. 
Having  observ^edduring  the^term  of  my  life  so  many  fataTexamples  of 
parents  having  left  their  children  in  a  state  of  opulence,  who  have 
afterwards  been  reduced  to  want  the  common  necessaries  of  life,  my 
principal  view  in  this  will  is,  that  my  wife  and  children  may  have  a 
solid  sufficiency  to  support  them  during  their  lives.  For  this  purpose 
I  will  and  most  strictly  ordain,  that  if  my  wife  or  any  one  of  my  chil- 
dren_shall  attempt  to^sppse  of  all  or^any  part  of  the  bank  stock,  the 
dividends  from  which  is  bequeathed  to  them  in  this  wall  and  testament 
for  their  sUppoft  durmg  their  Iives^^such  an  attempt ]by  my  wife  or  any 
of  my  cHTldren  shall  exclude  them,  him  or  her,  so  attempting,  from  any 
benefiFiiTthis  will  and  testament,  andTshall  forfeit  the  whole  of  their 
share,  prmclpaFand  interest;  which  shall  go  and  be  divided  unto  and 
among  my  other  children  in  equal  shares,  that  will  observe  the  tenor  of 
this  will  and  testament." 

The  bill  was  filed  by  Henry  Bradley  against  one  of  the  daughters  of 
the  testator,  who  had  taken  out  administration.  The  prayer  of  the 
bill  was,  that  the  defendant  might  be  decreed  to  transfer  the  £1620 
bank  stock  to  the  plaintiff.  The  other  children  were  out  of  the  juris- 
diction. 

Master  of  the  Rolls  [Sir  Richard  Pepper  Arden].  The  first 
clause  is  an  absolute  gift  of  the  principal  and  dividends.  But  then 
comes  this  clause,  with  which  the  plaintiff  does  not  comply;  and  the 
question  is,  whether  by  the  rules  of  this  court  he  can  demand  the  leg- 
acy, not  complying  with  the  injunction,  the  testator  has  laid  upon  him; 
or  rather  whether  the  condition  is  consistent  with  the  gift.  Seeing  the  ' 
father's  intent  so  clearly  and  strongly  expressed  I  have  taken  some  time 
to  consider  this  case ;  and  have  endeavored  to  satisfy  myself,  that  I  am 
at  liberty  to  refuse  the  plaintiff  the  demand,  which  he  now  makes. 
Indeed  another  reason  for  delaying  my  judgment  was,  that  there  ap- 
peared to  be  other  children,  who  were  interested  in  this  question  and 
were  not  parties  to  the  cause.  The  reason  given  for  not  having  them 
before  the  court  is,  that  they  are  all  out  of  the  jurisdiction.  Had  they 
been  in  this  country,  I  should  have  expected  them  to  have  been  made 
defendants,  to  sustain  their  interests  :  but  as  they  live  abroad,  the  cause 
has  proceeded  without  them ;  and  according  to  the  opinion,  I  have 
formed  of  this  case,  they  are  not  necessary  parties ;  because  I  feel  my- 


Ch.  1)         FORFEITURE  OF  ESTATES  OF  INHERITANCE  G03 

self  obliged  to  say,  that  the  proviso  I  have  before  stated  is  of  no 
effect. 

I  have  looked  into  the  cases,  that  have  been  mentioned ;  and  find  it 
laid  down  as  a  rule  long  ago  established,  that  \yhere  there  is  a  gift  with 
a  conditioninconsistent  with  and_i:eEugnant  to^such  gift,  the  condition 
is'wholly^voTd]  A  condition,  that  tenant  in  fee  shall  not  alien,  is  re- 
pugnant; and  there  are  many  other  cases  of  the  same  sort:  Piers  v. 
Winn,  1  Vent.  321.  Pollexf.  435.  The  report  in  Ventris  is  very  con- 
fused :  but  it  appears  clearly  from  the  report  of  this  case  in  PoUexfen, 
as  well  as  from  many  other  cases,  that  the  court  meant  to  say,  that 
where  there  is  gift  in  tail  with  condition  not  to  suffer  a  recovery,  the 
condition  is  void.  There  are  several  cases  of  this  kind  collected  in  2 
Danv.  Ab.  22,  which  show,  that  a  condition  repugnant  to  the  nature  of 
the  estate  given  is  void :  Co.  Lit.  223  a,  Dy.  264.  JMildmay's  Case,  6 
Co.  40.  Stukeley  v.  Butler,  Hob.  168,  is  of  the  same  kind;  where  it 
was  held,  that  an  exception  of  the  very  thing,  that  is  the  subject  of 
the  gift,  is  of  no  effect.  In  all  these  cases  the  gift  stands,  and  the  con- 
ditionor^xcgption  is  rejertpd.  In  this  case  then  I  am  under  the  neces- 
sity  ofdeclaring,  that  this  is  a  gift  with  a  qualification  inconsistent 
with  the  gift ;  and  the  qiialitication  must  therefore  beTejected.  This  is 
not  like  Sockett  v.  Wray,  ^TBro.  C.  (J.  483 ;  lor  there  the  gift  was  to  a 
feme  covert  for  life ;  and  then  to  such  uses  as  she  should  by  will  ap- 
point. She  could  only  appoint  by  will ;  and  could  not  bind  her  execu- 
tors by  any  deed  in  her  life-time;  and  I  declared  in  determining  that 
case,  that  I  should  think  otherwise  in  the  case  of  a  man  or  any  person 
having  an  absolute  interest.  A  man  could  bind  his  executors ;  but  not 
a  feme  covert.  If  this  had  heeii  a  gift  to^the  sorL.for  life,  and  after 
his  death  as  he  should  appoint,  and  in  default  of  appointmentthen  to 
o  t  h  ei'~persoTi57irHesireInQFTo^ 

if  fn  detault  ofappointment  it  was  to  go  to  his  executorsri  should 
doubt,  whether  it  would  be  so :  but  I  give  no  opinion  upon  this.  Upon 
the  whole,  I  am  obliged  to  hold  this  condition  repugnant  to  the  gif^t_and 
therefore  void.  Declare,  that  the  conditioiTannexed  to  the^legacy  of 
il62CrbaiTk  stock  is  repugnant  to  and  inconsistent  with  the  interest  giv- 
en to  the  legatee  of  the  stock,  and  therefore  void;  and  upon  payment 
of  the  costs  of  this  suit  by  the  plaintiff  let  the  stock  be  transferred  to 
him. 

In  Peixoto  v.  The  Bank  of  England,  Chan.  3d  of  June,  1797,  the 
subject  of  which  was  a  disposition  of  stock  by  the  same  will  in  precisely 
the  same  manner,  the  Lord  Chancellor  [Lord  Loughborough]  was  very 
clearly  of  opinion,  that  it  was  an  absolute,  not  a  limited,  interest ;  and 
decreed  accordingly.^ 

9  Accord:  In  re  Dugdale,  28  Ch.  Div.  176  (1S8S) ;  Ware  v.  Cann,  10  B.  & 
C.  4.3.3  (1S30) ;  Latimer  v.  Waddell,  119  N.  C.  370.  26  S.  E.  122,  3  L  R  A  (N 
S.)  668 ;  Potter  v.  Couch,  141  U.  S.  296,  11  Sup.  Ct.  1005,  35  L.  Ed.  721  (1891). 
But  see  Camp  v.  Cleary,  76  Va.  140. 


GOi  ILLEGAL   COXDITIOXS  AND   RESTRAINTS  (Part  5 

DOE  d.  NORFOLK  v.  HAWKE. 

(Court  of  King's  Bench,  1802.     2  East,  481.) 

On  the  trial  of  an  ejectment  for  a  certain  messuage  and  lands  in 
Yorkshire,  at  the  last  York  assizes,  a  verdict  was  found  for  the  plain- 
tiff on  the  demise  of  John  Ibbotson,  and  for  the  defendants  on  the 
demise  of  the  Duke  of  Norfolk,  subject  to  the  opinion  of  the  court  on 
the  following  case. 

Joseph  Whiteley  was  lessee  of  the  premises  in  question  for  the  term 
of  21  years  commencing  from  the  zyth  J^eptember  1789,  under  a  lease 
granted  to  him  by  the  Duke  of  Norfolk,  dated  25th  January  1790. 
Whiteley  entered  into  possession  of  the  premises  under  this  lease,  and 
made  his  will  dated  10th  October  1790,  whereby  he  disposed  of  the 
premises  iiTqliestion  as  follows :  "I  give  and  bequeath  to  my  nephew 
Abraham  Ibbotson,  with  submission  to  the  Duke  of  JNortolk,  the  tenant_ 
right  ol  my  farm  at  the  Edgefield,  which  I  hold  by  lease  under  his 
Grace,  he  paying  the  rent  and  conforming  to  the  covenants  in  the 
lease ;  but  not  to  dispose  of  or  sell  the  tenant  right  to  any  other  person : 
but  if  he  refuses  to  dwell  there  himself,  or  keep  in  his  own  possession, 
then  my  will  is,  that  rny  nephew  John  Ibbotson  (one  of  the  lessors  of 
the  plaintiff),  shall  have  the  tenant  right  of  the  farm  at  the  Edgefield." 
And  the  testator  directe3~(amongst  oTher  things)  that  the  said  farm 
should  be  delivered  up  as  before  willed  a  year  and  a  day  after  his  de- 
cease by  his  executrix  :  and  he  appointed  his  niece,  Sarah  Ibbotson,  sole 
executrix,  and  gave  the  residue  of  his  effects  to  her.  The  testator 
Whiteley  died  in  January  1799,  having  continued  in  possession  of  the 
premises  till  his  death.  The  executrix  married  Rowland  Hartley,  and 
duly  proved  the  will,  and  administration  was  granted  to  her,  and  she 
and  her  husband  entered  into  the  possession  of  the  premises  on  White- 
ley's  death.  And  in  February  1800  possession  of  the  premises  was 
duly  delivered  by  them,  together  with  the  lease,  to  A.  Ibbotson,  in 
pursuance  of  Whiteley's  will,  and  A.  Ibbotson  continued  in  such  pos- 
session till  he  quitted  the  same  as  after-mentioned.  When_A.  Ibbotson 
was  in  possession  of  the  premises  J.  Crookes  lent  him  i25  on  his  note 
of  Irariid ,  and  thcrctrptm  A.  Ibbuls-ott-deposited  'Vvith'-Crookcs  the  tSase 
of  tliFpTHmsEs-as-^arftrTtlTCr  security.  ^rArthe  time^t  lendmg  the~£25 
it  was'agree'd  between'Crookes  and  A.  Ibbotson,  that  Crookes  should 
have  the  first  chance  for  the  farm ;  but  no  actual  valuation  was  made. 
Crookes  made  further  advances  to  A.  Ibbotson,  amounting  in  all  to 
£60;  but  Crookes  knew  nothing  of  Whiteley's  will  until  the  whole  of 
the  £60  had  been  advanced.  Afterwards  A.  Ibbotson  was  arrested 
at  the  suit  of  R.  Hartley,  to  whom  he  (A.  Ibbotson)  had  given  a  warrant 
of  attorney ;  and  thereon  Crookes  paid  for  A.  Ibbotson,  at  his  request, 
£60  more,  to  effect  A.  Ibbotson's  liberation.  After  this  Crookes  took 
from  A.  Ibbotson  a  warrant  of  attorney  to  confess  a  judgment,  and  a 


Ch.  1) 


FORFEITURE  OF  ESTATES  OF  INHERITANCE 


605 


bill  of  sale  of  A.  Ibbotson's  goods;  but  never  entered  up  judgment  on 
such  warrant  of  attorney.  Then  one  William  Greaves,  at  A.  Ibbotson's 
request,  paid  off  the  moneys a^vajice3_by_(Jrookes,  and  took  from  A. 
Ibbotson  a^ffe^h  warranTof  attorney  to  confess  a  judgment;  ancPat 
the^'sanie  time  the  lease,  and  a  copy  of  Whiteley's  will  (which  had  been 
inXrookes'  po^ession),  were  delivered  by  Crookes.  Judgment  was 
entered  up  on  the  warrant  of  attorney  so  given  to  Greaves,  and  exe- 
cution thereon  issued  in  Trinity  Term  1801 ;  but  before  the  entry  with 
Greaves'  execution,  one  Joseph  Schofield,  another  creditor  of  A.  Ib- 
botson, had  levied  an  execution  upon  part  of  the  goods  of  A.  Ibbot- 
son, which  execution  being  satisfied  by  Greaves,  was  withdrawn,  and 
possession  was  taken  under  his  execution,  and  the  lease^  of  the  prem- 
ises in  question  was  on  the  18th  June  1801  publicly_soId  an^~assighed 
B)Qhe  yimfflunderTTireaves'  execution  to^jhe^defendants,  who  were 
immediately  put  into  possession  of  the  premises,  and  now  continue 
solely  possessed  thereof.  A.  Ibbotson  quitted  the  premises  in  the 
morning  before Jhe  sale,  and  has  ever  since  ceased^  to  dwell  there  o7 
have  any  possession  thereof .  John  Tb"bbrson"  (the  lessor  of  the  pTain- 
tifT)  attended  at  the  time  and  place  of  sale  (which  was  public),  and  be- 
fore the  actual  sale  gave_notice  oTTT7s~cIaim  under  Whiteley's  will  to 
the  defendants.  The  question  was,  Whether  the  plaintiff  were  entitled 
to  recover  on  the  demise  of  John  Ibbotson.  If  he  were,  the  verdict  to 
stand ;    if  not,  a  nonsuit  to  be  entered. 

Lord  Ellenborough,  C.  J.  The  terms  of  thisjlevise  are  to  bejcon- 
sidered_as  a  conditional  limitation,  jn  which  the^terest  of  Abraham 
Ibbotson  in  the_premises  is  Umited  on  certam  events,  on  the  happening 
of~whicn  itTTgiyen  over  toj^hn^  And  the  question  is,  Whether^e 
acts  oTlhe'ljarty  whose  incapacity  is  to  be  incurred  on  his  refusal  to 
dwell  on  the  farm  or  keep  it  in  his  own  possession,  have  not  deter- 
mined his  interest?  When  he  deposi^ted_tlie  lease  with  Crookes  as  a 
further  security  for  tlie  several  loans  of  money  advanced~by  him,  was 
this  not  a  voluntaryact  ?  and  when  the  lease  was  afterwards  delivered 
over  to  another  creditor  who  took  up  the  first  deman^TaiTd  to  whom  a 
warrant  of  attorney__was  at  the  same  time  given,  and  considering  that 
by  so  giving  up  the  lease  he  thereby  disabledTitmself  from  mortgaging 
the  premises,  and  by  giving  the  warrant  of  attorney  he  enabled  the 
creditor  to  dispossess  him  at  his  option,  must  he  not  be  taken  to  have 
contemplated  at  the  time  the  legal  consequence  of  these  acts  which 
afterwards  ensued?  That  these  were  yoluntary  acts  there  can  be  no 
doubt.  He  put  the  crejditorjn^posjession  of  the  document  of  the  farm ; 
and  by  all  the  authorities  he  thereby  gave  a  specific  lien  on  theleise^ 
For'a^cordTng'to'Russerv.  Kussel,  1  Bro.  Chan.  Cas.  269,  and  several 
other  cases  tliere  mentioned,  the  making  of  such  a  deposit  gives  juris- 
diction to  a  court  of  equity  to  compel  a  sale  of  the  lease  in  discharge  of 
the  lien.  As  it  then  enables  the  other  to  turn  the  party  out  of  posses- 
sion in  default  of  payment,  it  shows  a  purpose  in  the  latter  to  part  with 


606  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  5 

the  possession,  and  therefore  the  subsequent  proceeding  and  execution 
is  not  strictly  in  invitum,  so  as  to  bring  the  case  within  that  of  Doe  v. 
Carter.  And  there  need  not  be  fraud  in  the  transaction ;  it  is  enough 
if  there  be  a  manifest  intention  to  depart  with  the  estate,  followed  by- 
acts  to  that  end,  which  if  not  produced  immediately  by  the  procure- 
ment of  the  party,  may  yet  be  said  to  be  done  with  his  assent.  Upon 
the  whole  therefore  it  is  enough  to  say  that  here  was  a  voluntary  de- 
parting with  the  estate. 

Lawrence,  J.  The  lease  was  given  by  the  testator  to  Abraham 
Ibbotson,  so  long  as  he  lived  on  the  farm;  the  material  words  of  the 
bequest  are,  "that  he  should  not  dispose  of  or  sell  the  tenant-right  to 
any  other  person :  but  if  he  refused  to  dwell  there  himself,  or  keep  it 
in  his  own  possession,"  then  it  was  to  go  over  to  the  lessor  of  the  plain- 
tiff. Now  the  word  refused  is  only  a  figurative  expression ;  meaning 
if  the  first  taker  ceased  to  dwell  there.  There  was  certainly  no  occa- 
sion for  any  person  previously  to  inquire  of  him  whether  he  would  re- 
side there  or  not,  and  that  he  should  expressly  refuse  it. 

Le  Blanc,  J.  This  would  be  a  strong  case  if  it  rested  even  on  the 
first  point ;  for  here  are  strong  circumstances  to  show  that  this  was  a 
departing  with  the  possessionLoiJJie.  estate^bxl^^  party's  own  act.  Be- 
sides which,  on  the  construction  of  the  will  it  clearly  appears  to  have 
been  the  intention  of  thejestator  that  if  A.  IbboJ^son  ceased  to  live  on 
the  premises  or  keepTthem  in  his  own^possession,  they  should  go  over  to 
John  Tbbotson.  " 

Postea  to  the  plaintiff. ^° 

Grose,  J.,  was  absent  from  indisposition. 

10  In  Williams  v.  Ash,  1  How.  1,  11  L.  Ed.  25  (1843),  male  and  female 
slaves  were  bequeathed  to  A.,  provided  he  should  not  sell  them,  in  which 
ease  they  should  be  free.  A.  sold  a  male  slave.  Held,  that  he  was  free. 
See  Potter  v.  Couch,  141  U.  S.  296,  11  Sup.  Ct.  1005,  35  L.  Ed.  721. 

Regarding  the  Validity  of  Provisions  fob  Forfeiture  upon  Alienation 
OF  Future  Interests,  Whether  Contingent  or  Vested  Subject  to  be  Di- 
vested, OR  Vested  but  not  Subject  to  be  Divested. — See  Large's  Case,  2 
Iveon.  82,  3  Leon.  182  (1588) ;  Powell  v.  Bog?is,  35  Beav.  535  (1866) ;  In  re 
Porter,  [1892]  3  Ch.  481;  In  re  Goulder,  [1905]  2  Ch.  100;  Mandlebaum  v. 
McDonell,  29  Mich.  78,  18  Am.  Rep.  61  (1874) ;  Gozzard  v.  Jobbins,  14  N.  S.  W. 
R.  Eg.  28  (1S93). 


Ch.  1)         FORFEITURE  OF  ESTATES  OF  INHERITANCE  607 


SECTION  2.— ON  FAILURE  TO  ALIENATE 


ROSS  V.  ROSS. 

(Court  of  Chancery,  1819.     1  Jac.  &  W.  154.) 

William  Ross,  a  native  of  Scotland,  but  domiciled  in  England,  made 
his  will,  dated  5th  May,  1790;  containing,  amongst  others,  the  follow- 
ing bequest. 

"I  give  to  my  son  James  Hislop  Ross  the  sum  of  £2000,  lawful 
money  of  Great  Brftain,  to  be  paid  to  him  at  his  age  of  t^wenty-fiv£ 
years,  or  at  any  time  betwixt  the  age  of  twenty-one  and  twenty-five, 
should  my  executors  think  proper  so  to  do,  and  the  interest  thereof,  in 
the  mean  time,  to  be  applied  towards  his  maintenance  and  education ; 
and  in  case  the  said  James  Hislop  Ross  should  not  receive  or  dispose 
of  by  will  or  otherwise,  in  his  lifetime,  the  aforesaid  sum  of  i2000, 
then  the  said^um  sInaTI  retitrn,  aiid  be  paid  and  payable  to  the  heir  en- 
tail,  in  possession  oFthg_estate^of  Shandwick  for  the  time  being." 
~  'i'he  estate  mentioned  in  this  bequest,  situate^in  tlie  County  ^  Ross, 
had  previously  been  settled  by  the  testator,  by  a  deed  of  entail,  in  favor 
of  Jean  Ross,  his  eldest  daughter. 

James  Hislop  Ross  survived  the  testator,  and  died  intestate,  in  the 
year  1810,  having  attained  the  age  of  twenty-five  years.  He  had  not 
received  the  £2000  legacy,  but  in  a  suit  instituted  by  Jean  Ross,  against 
the  executors,  to  which  J.  H.  Ross  was  not  a  party,  the  accounts  of 
the  testator's  estate  had  been  taken,  and  a  sum  of  £1182  had  been  found 
by  the  master,  to  be  the  proportion  payable  to  J.  H.  Ross,  in  respect  of 
his  legacy:  this  sum  was  accordingly  carried  over  to  his  separate  ac- 
count, and  invested  in  the  purchase  of  £1891  3  per  cent,  annuities. 

J.  H.  Ross  being  illegitimate,  administration  of  his  personal  estate 
was,  at  the  nomination  and  on  the  behalf  of  the  Crown,  granted  to 
George  Maule,  Esq.,  who  now  petitioned  for  a  transfer  of  the  sum  of 
£1891,  and  the  dividends  which  had  accumulated  upon  it. 

The:  Maste;r  of  the;  Rolls  [Sir  Thomas  Plumer].  The  ques- 
tion, I  think,  is,  whether  this  will  vests  the  absolute  property  of  the 
legacy  in  the  legatee!  If_it  do  give  the  absolute  property,  {heTigHFof 
disposing  of  it,  or  its  devolution  upon  his  representatives  would  follow 
as  a  matter  of  course^  unless  there'^besomething'else  whiclrcuts~'doWn 
th e  gift ;  nothirig^t  that^an  prevent  the  legal  consequences  ot  prop- 
erty  from  ensuing. 

It  seems  to  me,  that  I  cannot  put  an  interpretation  on  the  words  of 
this  will,  by  considering  that  it  is  very  likely  that  the  testator  was  re- 
ferring to  other  circumstances;  to  the  imbecility  of  his  son,  or  to  the 
effect  of  the  Scotch  law.  It  is  probable  that  he  may  have  contemplated 
these  circumstances ;  but  being  bound  to  take  this  as  tlie  will  of  a  domi- 


608  ILLEGAL   CONDITIONS   AND   RESTRAINTS  (Part  5 

ciled  English  subject,  I  must  construe  it  without  reference  to  them, 
and  determine  the  consequences  of  what  appears  on  the  face  of  the 
will  itself. 

Now  every  word  he  has  used  tends  to  vest  the  legacy.  First  it  is 
given  to  be  paid  at  twenty-five ;  if  it  stopped  there,  it  would  clearly 
be  vested,  the  time  of  payment  not  being  annexed  to  the  substance  of 
the  gift ;  it  then  proceeds,  "or  at  any  time  betwixt  the  age  of  twenty- 
one  and  twenty-five ;  "  this  was  only  to  accelerate  the  payment ;  the 
executors  were  to  pay  it  before  the  first  period  if  they  thought  fit;  the 
interest,  in  the  mean  time,  is  to  be  applied  to  his  maintenance :  another 
feature  of  vesting.  If  the  bequest  had  stopped  here,  then,  if  he  had 
died  between  twenty-one  and  twenty-five,  or  even  during  his  minority, 
it  would,  according  to  the  cases,  have  been  vested  in  him ;  but  the  event 
renders  it  unnecessary  to  consider  what  would  have  been  the  conse- 
quences of  his  dying  under  age. 

The  legatee  then  acquired  an  absolute  interest ;  and  then  comes  the 
second  part  of  the  bequest,  by  means  of  w^iich,  you  must  endeavor  to 
get  it  back  again ;  you  must  say,  that  if  he  does  not  dispose  of  it,  it 
is  to  return  from  him;  but  I  do  not  recollect  any  instance  of  a  will, 
where  an  absolute  property  is^  first  given^  with  a  cundition,~That  if  the 
party  does  not  make  use  of  it.  it  shall  go~oyer.  Uut  it  was  neces^sary 
to  argue  it  to  that  extent. 

This  dijfers_from  a  power,  and  a  remainder  over  in  default  of  its 
exercise :  tlie£igh£_ofdisposing  of  "fhe^tegacy  is  given  hini,  not  in  ter- 
minis,  but  as~a  consequence~ot  property:  fftrvT'^DifsHte-Trcqirire  the 
power?  Ttlji^flJL^iven  asa  pow£fp^g^^totrows~tfOm  property^e- 
ingTTsT^^     The  testator  assumes  that  he  would  have  aTightTo'tfat 

11  In  The  Attorney-General  v.  Hall  (3d  July,  1731)  Fltzg.  9,  314,  W.  Kel. 
13,  the  testator  gave  to  his  son  and  the  heirs  of  his  body,  all  his  real  and 
personal  estate,  to  his  and  their  own  use ;  and  in  case  his  son  should  die 
leaving  no  heirs  of  his  body  living,  he  gave  all  and  so  much  of  his  estate 
as  his  son  should  be  actually  possessed  of  at  the  time  of  his  death  to  the 
Goldsmiths'  Company,  for  certain  charitable  uses ;  and  he  directed  them, 
not  to  give  his  son  any  trouble  during  his  life  concerning  his  estate.  The 
son  suflered  a  recovery  of  the  real  estate,  and  it  was  held  by  Lord  Chan- 
cellor King,  Sir  J.  Jekyll,  M.  R.,  and  Reynolds,  C.  B.,  that  as  to  the  personal 
property,  "the  limitation,  over  was  void,  as  the  absolute  ownership  was  given 
to  Francis  Hall,  the  son ;  for  it  is  to  him  and  the  heirs  of  his  body,  and  the 
company  are  to  have  no  more  than  he  shall  have  left  unspent,  and  there- 
fore he  had  a  power  to  dispose  of  the  whole,  which  power  was  not  expressly 
given  him,  but  it  resulted  from  his  interest."  [In  Fitzg.  321,  this  sentence 
follows:  "The  words  that  give  an  estate  tail  in  the  land  must  transfer  the 
entire  property  of  the  personal  estate,  and  then  nothing  remains  to  be  given 
over."  In  W.  Kel.  16  (with  which  accords  2  Eq.  Cas.  Ab.  in  marg.),  we  have 
in  addition  the  following:  "In  regard  the  ownership  and  property  of  the 
personal  estate  was  vested  in  Francis  Hall,  and  not  the  use  only ;  this  was 
held  to  be  a  void  limitation  to  the  Goldsmith's  Company.  It  is  giving  a 
man  a  sum  of  money  to  spend,  and  limiting  over  to  another  what  does  not 
happen  to  be  spent."  To  this  the  reporter  adds:  "And  so  note  a  difference 
between  a  devise  of  chattels  real  and  personal." — Ed.]  See,  also,  Brian  v. 
Cawsens,  2  Leon.  GS;  Flanders  v.  Clark,  1  Yes.  9;  3  Atk.  509;  Bland  v. 
Bland,  Prec.  in  Ch.  201,  n.  (Ed.  Finch),  and  2  Cox,  349;  Le  Maitre  v.  Ban- 
nister, Tree,  in  Ch.  201,  n. ;    Beachcroft  v.  Broome,  4  T.  R.  441 ;    Wynne  v. 


Ch.  1)         FORFEITURE  OF  ESTATES  OF  INHERITANCE  *609 

twenty-five ;  therefore,  if  he  should  have  received  it,  and  not  have 
disposed  of  it,  the  capital  in  solido  being  his  property,  and  remaining 
in  his  hands,  was  to  go  over  to  another.  But  if  you  give  absolute  prop- 
erty to  a  person,  you  cannot  subject  it  for  his  lifeToTaT  proviso,  that 
if  he  ^oes  not  spend  it,  his  interest  shall  cease.  One  of  the  conse- 
quenceswoukf  be,  that  if  he  had  not  spent  it,  and  were  to  die^n^ 
debfed^toany  amouni;,  his  creditors  would  be  excluded  from  it.  It^is 
quite^a  novel  attenTpt_to^ separate  the  devolution  of  property  from  the 
property  itself. ^^ 


DOE  d.  STEVENSON  v.  GLOVER. 

(Court  of  Common  Pleas,  1845.      1  C.  B.  448.) 

Ejectment  by  the  lessee  of  the  customary  heir  of  Ann  Stevenson 
claiming  under  the  will  of  Mordecai  Glover,  the  father,  against  Mor- 
decai  Glover,  the  son.^^ 

TiNDAL,  C.  J.  This  case  appears  to  me  not  to  fall  within  the  doc- 
trine that  has  been  relied  on  by  my  Brother  Gaselee  for  the  purpose 

Hawkins,  1  Bro.  C.  C.  179;    Strange  v.  Barnard,  2  Bro.  C.  C.  586;    Pushman 
V.  Filliter,  3  Ves.  7;    Bull  v.  Kingston,  1  Mer.  314. — Hep. 

12  Accord:  In  re  Wilcocks'  Settlement,  1  Ch.  D.  229;  Perry  v,  Merritt, 
18  Eq.  152;  Henderson  v.  Cross,  29  Beav.  216;  In  Bowes  v.  Goslett,  27  L,. 
J.  Ch.  249,  the  same  rule  was  applied  to  leaseholds. 

The  same  result  was  obtained  in  the  following  cases:  Lightburne  v.  Gill, 
3  Br.  C.  I*.  250  (die  unmarried  or  intestate) ;  In  re  Yalden,  1  D.,  M.  &  G. 
53  (die  without  leaving  issue  and  without  having  disposed  of  the  sum  by 
will  or  otherwise). 

In  Watkins  v.  Williams,  3  Macn.  &  G.  622,  at  629,  Lord  Chancellor  Truro 
said:  "Now,  it__is  a  rule  that,  where  a  money  fund  is  given  to  a  person  ab- 
solutely a  condition  cannot  Pe  annexed  to^he  gift,  that  so  much  as  he 
shall  not  dispose  of  shall  go  ^ver  to  anotlierjjeiisoiii.  ApaiiTfrbm  any  sup- 
posed incongruity,  a  notion  which  savours  of  metaphysical  refinement  rather 
than  of  any  thing  substantial,  o_ne  reason  which  may  be  assigned  in  support 
of  the  expediency  of  this  rule  isTtnat  in  many  cases  it  migbt  be  very  diffi- 
cuU.  and  even  impossible,  to  ascertain  wnettrer  any  part  of  fhe  fund  i^mMneH 
uiidisiiospa  of  or  not : ,.  s^ince.  ~lt  ttie~person  to  whom  the  absolute  interest  is 
given  left  any  personalty,  it  might  be  wholly  uncertain  wliether  it  were  a 
part  of  the  precise  fund  which  was  the  subject  of  the  condition  or  not.  An- 
ntlyr  rpnsnn  may  be.  that  it  would  be  contrary  to  the  well  being  of  the 
pa  r_tyal)sol  utely  entitled  to  lead  him  profusely  to  spend  nil  that  was  given 
h i m^  wMrh^jn  many  cases  miglv^  be  ail  that  he  had  in  the  world ;  for  al- 
though, indeed,  he  might  provide  against  leaving  himself  destitute  by  buying 
an  annuity  yet  even  if  he  did  this  it  might  be  at  the  exi>euse  of  those  for 
whom  he  might  be  under  a  moral  obligation  to  riake  eome  provision.  In_ 
Ross  V.  Boss,  Sir  Tliomas  Plumor  with  refereiice  to  such  limitations  ilb^ 
served  in  effect  'that  one  consequence  of  permitting  such  limitations  over 
woultl  be,  that  if  the  party  entitled  to  the  absolute  interest  had  not  spent 
the  money,  'and  were  to  die  indebted  to  any  amount,  his  creditors  would  be 
excluded  from  it;^  the  validity  of  this  reason  may"ljg~dtnthtful7-as-4t-«my 
perhaps  M  said,  that  a  nniirnnght  l^roperly  be  deemed  to  have  spent  thg~ 
amount  of  debts  whicTTTie  has  contracted,  and  which  he  has  laid  himself 
under  an  obllgatloir  to  payT^  ~      "  ~  ' 

i"3  The  case'is^ufBciently  stated  in  the  opinion  of  the  Chief  Justice. 

4  Kaij-.s  Prop. — 39 


610  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  5 

of  showing  that  the  provision  in  the  will  of  Mordecai  Glover,  the  fa- 
ther, upon  which  the  claim  of  the  lessor  of  the  plaintiff  is  founded,  is 
in  the  nature  of  a  condition  that  is  repugnant  to,  and  incompatible 
with,  the  prior  absolute  gift  to  Mordecai  Glover,  the  son.  Strictly 
and  properly  it  is  an  executory  devise,  cutting  down  the  interest  which 
the  son  was  to  take,  upon  the  happening  of  certain  events,  which  have 
happened.  The  only  question,  therefore,  for  our  consideration  is, 
what  was  the  intention  of  the  testator.  Upon  that  point,  also,  the 
case  appears  to  me  to  be  free  from  doubt.  After  giving  to  his  wife  an 
estate  for  life  in  all  his  customary  or  copyhold  and  real  estates,  the 
te'stator^proceeds :  "And,  from  and  immediately  after  her  decease, 
then  I  give  and  devise  all  and  singular  my  aforesaid  messuages,  lands, 
&c.,  unto  my  son  Mordecai  Glov_er,  and  his  heirs  and  assigns  forever, 
to  hold  to  him  and  his  heirs  and  assigns  forever ;  but,  in  case  my  said 
son  Mordecai  Glover  shall  jiappen  to  depart  this  life  wTtlTout  leaving 
any  issue  of  his  body  lawfully  begotten  then  living,  or  being  no  siTcli 
issue,  anShe  my  said  son  shall  not  have  disposed^and  parted  with  his 
interest  of,  in,  and  to  the  aforesaid  copyhold  estate  and  premises, 
then,  and  in  such  case,  I  give  and  devise  the  same  customary  or  copy- 
hold messuages,  &c.,  and  real  estate,  unto  and  to  the  use  of  my  illegiti- 
mate  daughter  Ann  Stevenson,  and  of  her  heirs  and  assigns  forever." 
The  words  "parted  witli,'^^ETcliare~in  apposition  to,  seem  to  me  to 
be  explanatory  of,  the  prior  and  more  general  word  "dispose,"  and 
clearly  to  indjcate  a  disposjtionxLiLpaxting  with  the  estat£J)y  the  devi- 
see, by  a  convevance  that  was  to  have  its  complete  effect  and  opera- 
tion in  his  lifetime.  If  "parted  with"  had  been  the  sole  phrase  used, 
it  cauI3"miry  have~been  satisfied  by  a  conveyance  by  a  deed  executed 
by  the  party  in  his  lifetime :  and,  when  we  find  the  two  expressions 
thus  coupled  together,  I  think  we  cannot  give  a  more  extended  inter- 
pretation to  the  word  "disposed"  than  the  sentence  would  have  been 
susceptible  of  if  that  word  had  not  been  found  in  it.  But,  even  if  it 
had  rested  upon  the  word  "disposed,"  I  should  have  inclined  to  hold, 
upoh'^tTie  principle  that  a  will  is  ambulalory,  ancl  speaks  only  from 
the  time" of  the  testator's  death,  that  a  devisFof  tlie  estate  in  question 
was  not  a  disposing  of  it  within  thelneaning  of  this  will.  The  fair  in- 
ference arising  Trom  the  whole  scope' of  the  will  tenls  to  the  same 
conclusion.  The  testator,  in  the  first  place,  gives  the  estate  to  the  son 
and  to  his  heirs,  should  he  have  any ;  and  he  gives  him  full  power  to 
dispose  of  it  in  his  lifetime.  But  he  goes  on  to  evince,  in  the  event  of 
his  son  dying  and  having  no  issue,  a  natural  desire  that  the  estate 
should  go  to  his  illegitimate  daughter,  provided  his  son's  wants  should 
not  have  made  it  necessary  for  him  to  part  with  it  in  his  lifetime. 
And  this  was  by  no  means  an  unreasonable  mode  of  dealing  with  the 
property.  For  these  reasons,  I  am  of  opinion  that  the  plaintiff  is  en- 
titled to  judgment. 

CoivTMAN,  J.    I  am  unable  to  perceive  any  objecjion  to  the  gift  over 
in  this  case,  as  arTexecutory  deviseT  There  is  nothing  in  it  that  is 


Ch.  1)         FORFEITURE  OF  ESTATES  OF  INHERil^ANCB  611 

repugnant  to,  or  inconsistent  with,  the  prior  devise :  nor  does  it  op- 
erate any  restraint  on  alienation ;  on  the  contrary,  it  expressly  recog- 
nizes the  power  of  the  son  to  alien  the  estate  during  his  lifetime. 
Then  comes  the  question  whether  oj^  notjthe__SQn  has  disposed  and 
partedjwith  the  estate,  according  to  the  intention  of  the  testator. 
Construing  those  words  grammatically,  they  clearly  point  to  an  act  to 
be  done,  andToHtake  effect,  in  the  lifetime  of  the  sonT"  The  words 
are — "incase  my  said  son  shall  not  have  disposed  and^arted  with  his 
interest  of,  in,  and  to  the  aforesaid  copyhold  estate  and  premises,  then 
and  in  such  case  I  give  and  devise  the  same  customary  or  copyhold 
messuages,  &c.,  and  real  estate,  unto,  and  to  the  use  of,  my  illegiti- 
mate daughter  Ann  Stevenson,  and  of  her  heirs  and  assigns  forever." 
To  what  period  do  these  words  "disposed  and  parted  with"  apply? 
Clearly,  to  the  time  of  the  son's  death :  and  at  that  time  he  had  not 
done  anything  to  divest  the  estate  out  of  him.  The  construction, 
therefore,  upon  which  the  lessor  of  the  plaintiff  relies,  is  evidently  the 
true  one.  And  this  construction  leads  to  no  incongruity  or  absurdity : 
it  is  a  very  rational  and  proper  mode  of  disposing  of  the  estate.  If,  as 
was  suggested  by  my  Brother  Cresswell,  the  son,  having  no  children, 
should  wish  to  dispose  of  the  estate  itl  his  lifetime,  the  testator  leaves 
him  ajt_full  liberty  to  do  so ;  but,  in  the  event  of  his  not  having  exer- 
cised  that  j)ower^  and  dying  childless,  the  intention  of  the  testator 
was,  that  his  own  illegitimate  daughter:r-whom  he  was  under  a  moral 
obligation  to  provide  for — should  have  the  estate^  and  not  that  the 
son  should  have  power  to  dispose  oj  it  by  will^in  the  manner  he  has* 
assumed  to  do. 

CrESSWeIll,  J.  I  am  entirely  of  the  same  opinion.  It  has  hardly 
been  denied  that  the  disposition  in  favor  of  the  testator's  illegitimate 
daughter  was  a  good  executory  devise,  in  the  first  instance.  There 
was  no  condition  that  was  repugnant  to,  or  inconsistent  with,  the 
prior  devise  to  the  son.  The  soiirnight_  have  prevented  the  devise 
over  from  taking  effect,  by  disposing  of  the  property  in  his  lifetime. 
B ut,  in  the  event  of  his  not  exercismg  that  power,  the  estateTs'giyen~ 
over,  and  nothing  remaijisjorjiim  to_part_with  by  his  will. 

ErlE,  J.  1  also  am  of  opinion  that  the  plaintiff~is  entitled  to  judg- 
ment. The  intention  of  the  testator  evidently  was,  to  give  to  his  son 
absohxte  ^omimonlSyier-HTe-^^  he  chose  to  exercise  that 

dominion  in  his  lif etime,_but  not  to  leave  to  him  the  selection  of]tKe 
object  of  his  bounty  by  his  wTIT  Such  appears  to  me  to  have  been  the 
intention  oFllTe  testafor;  and  I  think  the  words  he  has  used  are  in- 
compatible with  any  other  construction.  The  restriction  imposed  up- 
on the  power  of  alienation  became  effectual  by  the  son  dying  seised. 
For  these  reasons,  I  am  of  opinion  that  the  case  of  the  defendant, 
who  claims  under  the  son's  will,  fails. 

Judgment  for  the  plaintiff.^* 

14  See,  also,  Andrews  v.  Roye,  12  Rich.  (S.  C.)  5.36, 


613  ILLEGAL  CONDITIONS  AND  RESTRAINTS  (Part  5 

HOLMES  V.  GODSON. 
(Court  of  Chancery,  1S5G.    8  De  Gex,  M.  &  G.  152.) 

Th^  Lord  Justice  Turnkr.^^  The  plaintiffs  in  this  case  claim  to 
be  entitled  to  certain  real  estates  devised  by  the  will  of  Thomas  Yates 
Ridley  under  a  conveyance  from  Thomas  Yates  Ridley,  the  son  of  the 
testator  and  a  devisee  under  his  will. 

The  testator  by  his  will,  after  giving  his  wife  his  plate  and  so  on, 
proceeded  thus:  "I  give  and  bequeath  unto  my  dear  wife  Jane,  and 
Richard  Godson,  Esq.,  and  the  survivor  of  them,  and  the  executors, 
administrators,  and  assigns  of  such  survivor,  upon  trust  that  they  shall 
with  all  convenient  speed  call  and  convert  into  money  all  such  parts  of 
my  residuary  estate  as  do  not  consist  of  money  or  security  for  mon- 
e}'^  upon  trusl^for  my  son  Thomas  Yates  Ridley  to  vest  iriTiIm  on  his 
attaining  the^age  of  twenty-one  years ;  but  in  case  my  said  son  shall 
not  live  to  attain  a~veste^  interesPtherein,  then  in  trust  for  my  dear 
wife  Jane  during  her  natural  life."  Then  tliere  is  a  dispostfTon  of 
book?,  prints,  and  manuscripts  In  favor  of  the  son.  Then  there  is  a 
bequest  of  the  advowson  at  Heysham  in  trust  for  the  benefit  of  the  son. 
Then  follows  tliis  clause :  "But  in  case  my  dear  son  Thomas  Yates 
Ridley  shall  not  live  to  attain  the  age  of  twenty-one  years,  oF"havirig^ 
attained  tlie'^e  of  twenty-one  years  shall  not  have  made  a  will,  I 
hereby  direct  my  said  executoi's  or  trustees  ^to^seTTari  my  property  both 
real  and  personal  at  their  discretion,  and  to  investthe  proceeds  lor  the 
beneHFoFmy^  said  wife  Jane  for  her  natural  life^nd  after  her  death 
all  the  said  investment  1  bequeath  to  my  trienH~Richard  Godson.  Esq.'' 
There  is  a  codicil  to  the  ~Avill,  by'^wTTich  the  testator  devises  all  his 
property,  both  real  and  personal,  to  his  wife  and  ]\lr.  Godson  to  car- 
ry into  effect  the  trusts  of  his  will  created,  and  to  sell  his  real  prop- 
erty to  pay  his  debts  or  for  the  advancement  of  his  son. 

Now,  upon  the  construction  of  this  will  and  codicil,  I  think  it  rea- 
sonably clear  that  the  real  estates  vested  in  the  son  at  the  age  of  twentvr 
,,one  years,  which  he  attained^  The  testator  give^'all  such  parts  of  his 
residuary" estafe^ as  Tfo^not  consist  of  money  or  securities  for  mone}«f* 
•^'-^\\"hatever  doubt  there  might  have  been  upon  those  words  if  they  had 
stood  by  themselves  as  to  whether  they  would  extend  beyond  a  dis- 
position of  the  personal  estate  only,  that  doubt  is,  I  think,  removed 
by  the  ulterior  clause  in  the  will,  by  which  the  testator  has  said,  that  in 
case  his  son  shall  not  live  to  attain  twenty-one,  or  having  attained 
twenty-one  shall  not  have  made  a  will,  he  directs  his  executors  and 
trustees  to  sell  all  his  property  both  real  and  personal.  It  is,  I  think, 
quite  plain  that  the  testator  in  that  clause  meant  to  dispose,  in  the, 

15  As  the  opinion  of  Tui-ner,  L.  J.,  sufliciently  gives  the  facts,  the  separate 
statemmit  in  the  report  is  here  omitted,  as  is  also  the  concurring  opiii'-on  of 
Knight-Bruce,  L.  J. 


Ch.  1)         FORFEITURE  OF  ESTATES  OF  INHERITANCE  G13 

event  of  the  son  dying  under  twenty-one,  of  the  property  which  the 
son  was  to  take  if  he  attained  twenty-one,  and  that  the  disposition  ex- 
tends to  all  the  testator's  property  both  real  and  personal.  I  think, 
also,  that  the_words  of  the  will  are  sufTicient  to  vest  tJie_feeJn  the  son 
upon  his  attaining  twenty-one.  ~ 

Th^Jsole  question,  therefore,  on  the  ^aintiff's  title  is^  whether  the 
fee  whichjvas  thus  vestedjn_the_soiL,wa <;  defeatprl  and  the  estate~car- 
ried  over  to  the  widow  and  Mr.  Godson  by  tlie  event  which  happened 
of  tHF~s^irTiaving  aftenvards  died  without  having  made  a  will.  Fain 
of  opinion  that  it  was  not. 

^'his  isln  terms  a  disposition  of  real  estate  in  favor  of  other  devisees 
in  the^^enfof  a  devisee  in  fee  dymglntestafe^  and  I  think  that  such 
a  gisposltion  is^^  repugnant  and  void.  Thejaw^  which  is  founded  on 
prliTciples'of  public  policy  for  the  benefit  of  all  whcTare  subject  to  its 
projnsions^as  said  that  m  the  event  oPgji^wner  in  fee  dying  iiv- 
testTte,  the~estate  shall  go  to  his  heir ;  and  this  disposition  tends  di- 
rectly  tQ~cohtravene  IKe  law  aiigr  to"HeTeat~the  polic>n3n~\v'Hichr"it  is 
founded:  Oji^rinciple,  therefore,  I  think  the  disposition  bad ;  and 
the  cases  which  were  cited  in  the  argument  appear  to  me  to  be  con- 
clusive upon  the  point. 

In  addition  to  those  cases  which  were  referred  to,  there  is  the 
case  of  LiglUburne  v.  Gill,  6  Bro.  P.  C.  36,  to  which  my  learned  broth- 
er has  referreci,  and  which  I  have  before  me,  where  there  was  a  sum 
of  £500  wiiich  the  testator  left  to  his  daughter,  to  which  he  was  en- 
titled under  a  settlement,  and  all  the  rest  of  his  worldly  goods,  effects, 
and  substance  real  and  personal  to  dispose  of  as  she  should  think  fit. 
But  if  his  said  daughter  should  die  unmarried  or  intestate,  then  what 
was  thereby  leFt'lo~Tief'~should  go  to  and  be  equally^^ivided  among 
the  children  of  his  brother  the  Rev.  Stafford  Lightburne.  The  daugh- 
ter having  died  intestate,  the  bill  was  filed  in  the  Court  of  Chancery 
by  the  children  of  the  brother,  claiming  to  be  entitled  under  the  dis- 
position over  in  the  event  of  the  daughter  dying  unmarried  or  intes- 
tate, and  it  was  held  that  the  bill  could  not  be  maintained.  The  bill 
was  dismissed,  there  w^as  an  appeal  to  the  House  of  Lords,  and  the 
House  of  Lords  confirmed  the  decree  dismissing  the  bill. 

It  was  objected  to  these  cases  and  to  Ross  v.  Ross,  1  Jac.  &  W. 
154,  and  otliers  which  1  do~not  think  it  necessar}'  to  go  through,  and 
to  this  case  of  Lightburne  v.  Gill,  that  they  alLreferred  to  personal 
estate.  But,  upon  this  question,  I  confess_myself  unable  to  see~thi 
distinction_biet\veen  cases  relating  to  personal  ^nd^  cases  relating  to 
real  estate.  Such  dispositions  of  personal  estate  are  void  because  they 
are  inconsistent  with  the  absolute  interest  and  defeat  the  course 
of  devolution  which  the  law  has  provided.  L"pon  what  ground  can 
it  be  held  that  the  same  principle  does  not  reach  to  the  like  disposi- 
tions of  real  estate?  I  should  feel  great  difficulty  in  maintaining  such 
a  distinction  even  if  authority  were  wanting  upon  the  point;  but  au- 
thority is  not  wanting  upon  it. 


G14  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  5 

I  may  refer  to  the  case  of  jMuschanip  v.  BUiet,  in  Sir  John  Bridg- 
man's  Reports  (J.  Bridg.  132);  although  the  case  is  not  exactly  in 
point  in  this  case,  yet  I  find  some  obsenations  which  are  of  great  im- 
portance, as  it  strikes  me,  bearing  upon  the  present  question.  There 
was  this  clause  in  the  will :  "And,  as  touching  my  lands  at  Totten- 
ham, my  son  Matthew  is  joint  purchaser  with  me  of  the  most,  and 
the  rest  of  all  my  houses  and  lajid  there  which  is  freehold  I  give  tP 
Henry  and  Michael  Lock  uponjliis  condition,_that_ii_they  shall  sell 
if'to  any  niaiiJjUlJojy^ifEew^ock  my  son^  then  he  to^nter  upon 
it  as  of^gift  by  this  my  will."  The  question  arose  first,  whether  the 
fee  passed  under  the  disposition  to  Henry  and  Michael.  Cases  are 
gone  into  on  that  subject  affecting  such  dispositions  by  grant.  Then 
the  court  enters  into  the  question  of  the  effect  of  this  in  a  devise,  and 
says:  "But  I  agree  that  in  case  of  a  devise,  although  the  apt  words 
to  make  an  estate  of  inheritance  to  pass  are  omitted"  (the  devise  was 
merely  to  Henry  and  Michael  without  any  words  of  inheritance),  "yet, 
if  the  intent  of  the  devisor  does  appear  by  any  express  matter  contained 
in  the  will,  an  estate  of  inheritance  shall  pass,  for  it  is  sufficient  to 
pass  the  inheritance.  If  one  deviseth  land  to  another  in  perpetuance, 
the  devise  by  these  words  shall  pass  an  estate  in  fee.  So,  if  one  devise 
land  to  another  to  give,  dispose,  or  sell  at  his  pleasure,  this  is  an  es- 
tate in  fee-simple."  Then  there  follows  this:  "But  yet  the  law  hath 
restrained  such  intent.  For,  first,  it  ought  to  be  agreeable  to  law 
and  not  repugnant  to  it;  for,  although  in  Scholastica^s_Case^Plowd. 
403,  in  the  comment,  it  is  said  that_ajwill  is  like  to"an  Act  ofTarTT^- 
meiiM'et  a"wiircaiihot  alferlEeTa^^r  makej^jiew  forrnof^n  estate, 
which  is~not  allowed  by  Fhe  rules  of  law,  as~airAcrof  Parliament  is^ 
and  so  adjudged  in~tRe  Common  BendHT  Hil.  T.  37  Eliz.,  between 
Jermin  and  Ascot,  Coke's  Reports,  in  Corbet's  Case,  1  Rep.  85a,  that 
by  a  devise  a  man  cannot  give  an  estate  and  determine  part  thereof 
by  a  condition  and  make  the  residue  to  continue.  And  if  land  be 
devised  to  one  in  tail  he  cannot  determine  the  estate  as  to  the  devisee 
himself,  and  yet  preserve  the  estate  to  the  issue.  And,  28  &  29  Hen.  8, 
Dyer  (Anon.  Dyer,  33),  if  land  be  devised  to  one  in  fee,  and  if  he 
does  not  perform  such  an  act,  the  land  shall  remain  to  another,  the 
remainder  is  void,  for  no  such  remainder  can  be  limited  by  the  rules 
of  law." 

In  another  part  of  the  same  report  there  is  a  reference  to  Baker's 
Case,  cited  J.  Bridg.  137,  in  which  it  is  said,  "A  devise  to  the  hus- 
band and  wife,  with  remainder  to  their  two  sons,  upon  condition  that 
if  they  or  their  heirs  go  about  to  alien,  &c.,  is  a  fee-simple ;  also  for 
the  heirs  being  restrained  to  alien,  does  show  fully  that  the  heir  shall 
have  the  land,  for  otherwise  he  cannot  alien  it." 

But  there  is  another  very  much  more  important  case,  for  which  we 
are  indebted  also  to  the  great  research  and  knowledge  which  ]\Tr.  Lee 
has  brought  to  our  aid  in  the  present  case.  I  refer  to  t^2£JlSP2I^Ji} 
Serjeant  Hill's  manuscript,  and  which  is  really  a  most  important  case 


Ch.  1)         FORFEITrRE  OF  ESTATES  OF  INHERITANCE  G15 

in  my  view  of  it  as  bearing  on  the  present  case.  It  is  the  case  of  Gul- 
liver V.  Vaux,  8  De  G.,  M.  &  G.  167.  In  that  case  Thomas  Turney^ 
was  seised  iif  f ee  and  made  his  will  on  the  29th  of  December,  1712, 
"and  therein  devised  the  premises  to  Thomas  Turney  his  second  son, 
and  his  heirs,  provided  he  should  live  to  attain  the  age  of  twenty-one 
years  and  not  otherwise,  and  charged  the  estate  with  £350  payable  to 
the  testator's  daughter  Dinah  Turney  at  her  age  of  twenty-four.  And 
if  his  said  son  Thomas  Turney  should  die  before  twenty-one,  then  he 
devised  the  premises  to  his  eldest  son  Tawyer  Turney  and  his  heirs 
when  he  should  attain  the  age  of  twenty-one  years,  and  charged  the 
estate  with  £550  payable  to  his  daughter  Dinah  at  her  age  of  twenty- 
three.  And  if  it  should  so  happen  that  his  son  Thomas  and  his  son 
Tawyer  should  both  die  before  they  should  severally  attain  the  age  of 
twenty-one  years,  then  he  devised  the  premises  to  Dinah  Turney  and 
her  heirs,  and  gives  his  wife  the  profits  of  the  premises  till  her  chil- 
dren should  attain  to  their  several  ages  above  expressed,  and  after  that 
gives  her  an  annmty  of  £100  a  year  for  life  issuing  out  of  the  estate. 
Then  follows  this  clause :  "And  for  prevention  of  any  difference 
which  may  hereafter  arise  concerning  the  inheritance  of  my  real  estate, 
in  case  it  shall  so  happen  that  aU  my^j;ee^chijdren_shall  depart  this 
lne~  widiouTTeavrng  issue  lawfully  begotten  and  born  of  any  of  tReir 
bodies  ah^  without  appointing  the  disposal  of  the  same,  then  and  in 
such  case  I  give"  to  Ann  my  wife  £500  yearly  over  and  above  the  £100 
already  mentioned,  payable  out  of  my  said  estate.  Also  I  give  £10 
yearly  to  the  ministers  and  churchwardens  of  Cransfield  to  be  dis- 
posed in  charitable  uses.  Also  I  give  all  my  said  lands  unto  my  loving 
cousins  Robert  Perrott,  Richard  Perrott,  Thomas  Dell,  and  Robert 
Dell."  The  sons  and  the  daughter  all  died  under  twenty-one,  and  all 
died  without  making  any  disposition  of  the  estate^and  in  the  terms 
of  this  will  without  appointing  the  disposal  of  the  same.  The  devisees, 
however,  brought  ejectment,  and  upon  that  two  questions  appear 
to  have  arisen:  first,  whether  according  to  the  true  construction  of 
the  will  the  sons  and  the  daughter  took  estates  tail  or  estates  in  fee; 
and  secondly,  supposing  they  did  take  estates  in  fee,  then,  whether 
the  executory  devise  over  in  the  event  of  their  all  dying  without  leav- 
ing issue  lawfully  begotten  and  without  appointing  the  disposal  of 
the  same  was  a  good  executory  devise.  All  the  judges,  Lord  Chief 
Justice  Willes,  Mr.  Justice  Abney,  and  Mr.  Justice  Burnett,  agreed 
in  opinion  it  was  g^ee  in  favor^f  the  son ;  and  then  came  the  ques- 
tion, whether  the  executory  devise  over  was  good.  Lord  Chief  Jus- 
tice WiTIes  "and  Air.  Justice  Abney  delivered  their  opinions  that  the 
executory  devise  was  good  upon  this  ground,  that  it  fell  within  the 
period  allowed  by  law.  That  was  the  opinion  which  they  gave  in 
the  first  instance.  Mr.  Justice  Burnett,  however,  agreeing  that  the 
sons  and  the  daughter  would  take  in  fee  and  that  the  case  was  one  of 
executory  devise,  and  agreeing  also  that  the  executory  devise  would 
take  effect  within  a  limited  period,  addressed  himself  to  this  question, 


016  ILLEGAL   COXDITIOXS   AND   RESTRAINTS  (Part   5 

what  was  the  effect  of  the  clause  in  the  will  by  which  the  executory 
devise  was  made  to  depend  upon  the  sons  and  the  daughter  dying 
without  appointing  the  disposal  of  the  estate?  and  he  expressed  him- 
self thus :  "But  I  am  clearly  of  opinion  that  this  condition  or  con- 
tingency"  (it  isjyery  importantTperhaps, Jo_observe  those  words)  "an- 
nexed^To^e  estate  of  the  children,  and  precedenf  t^  that  of  the  dev- 
isees' estate,  is  "a^voU^cbh^ition,  and  consequently  the  devise  de- 
pendent on  ft  can  never  take  place.  A  condition  or  contingency  re^ 
pugnant  to  the  estate  devised  must  be  void.  Thus,  a  devise  to  one 
in  fee  upon  conditiotTlhat  he  shall  not  alien  is  void.  So  a  devise  in 
fee,  upon  condition  that  the  wife  shall  not  be  endowed,  or  the  hus- 
band be  tenant  by  the  curtesy,  is  void,  because  repugnant  to  the  estate 
devised.  So  feoft'ment  in  fee,  upon  condition  that  feoft'ee's  daughters 
shall  not  inherit,  is  void,  because  repugnant  to  the  nature  of  the  es- 
tate. What  is  the  condition  here?  That  if  Thomas  dies  without  is- 
sue, his  heirs  shall  not  take  by  descent  but  b)^  appointment,  whereas 
a  devise  to  a  man's  heir-at-law,  or  grant  to  heirs,  is  void  and  he  will 
take  by  descent.  In  this  case,  therefore,  a  devise  in  fee  upon  the 
condition  that  his  heirs  shall  not  take  by  descent  unlessJig__sp£cTally 
appoints  them  is  a  void  condition,  and^ consequently  the  devise  subsist- 
ing~on  that  condition  is  void."  Then  the  case  Concluded  ThusT~Lord 
Chief  Justice  Willes  and  Mr.  Justice  Abney  both  changed  their  opin- 
ion and  concurred  with  Mr.  Justice  Burnett  in  the  opinion  he  expressed. 
There  cannot  be  a  higher  authority  than  that  case,  either  as  applicable 
to  the  present  or  with  reference  to  the  weight  which  it  derives  from 
the  judges  by  whom  it  was  decided. ^° 

These  cases  pf  Muschamp  v.  Bluet,  Gulliver  v.  Vaux,  Ware  v.  Cann, 
10  B.  &  C.  433,  referred  to,  are  all  cases  of  real  estate,  and  they  seem 
to  me  clearly  to  prove  that,  upon  this  point,  there  is  no  distinction  be- 
tween the  cases  relating  to  real  and  personal  estate.  In  truth,  the 
decisions  in  both  cases  turn,  as  I  apprehend,  on  this :  the  law  has  said, 
that  if  a  man  dies  intestate,  the  real  estate  shall  go  to  the  heir,  and 
the  personal  estate  to  the  next  of  kin,  and  any  disposition  which 
tends  to  contravene  that  disposition  which  the  law  would  make  is 
against  the  policy  of  the  law,  and  therefore  void. 

In  the  argument  of  this  case,  great  reliance  was  placed,  en  the  part 
of  the  defendants,  on  the  case  of  Doe  v.  Glover,  1  C.  B.  448;  but  in 
that  case  the  court  seems  to  me  to  have  proceeded  upon  the  ground, 
that  the  devise  over  was  not  repugnant  to  or  inconsistent  with  the 
prior  devise,  and  the  court,  therefore,  certainly  did  not  intend  to  dis- 
turb the  previous  authorities  on  the  principle  on  which  they  proceeded. 
The  devise  was  there  ji_devise_in_fee,  and  in  case  the  devisee  should 
not  have  parted  with  or  disposed  of  tlie~sanie,  theiTover.  The  court 
was  of  opinion  that  he  could  not,  under  thaC  dispose  of  it  by  will, 

18  As  in  accord  with  Gnlliver  v.  Vaux,  see  In  re  Dixon,  L.  R.  [1903]  2  Ch. 
458 ;  Green  v.  Harvey,  1  Hare,  428  (leaseholds) ;  O'Callaghan  v.  Swan,  13 
Vict.  L.  II.  676. 


Ch.  1)         FORFEITURE  OF  ESTATES  OF  INHERITANCE  617 

but  that  the  testator  meant,  unless  there  was  a  parting  with  or  disposi- 
tion of  the  estate  by  deed  in  the  Hfetime  of  the  first  devisee,  the  dev- 
isees over  would  take,  and  the  executory  devise  over  to  them  would 
be  good.  I  may  observe,  too,  that  the  attention  of  the  court  seems 
hardly  to  have  been  drawn  to  the  point,  that  the  devise  over,  as  it 
was  construed,  took  away  the  testamentary  power  which  was  incident 
to  the  fee  first  devised.  Not  one  word  seems  to  have  fallen  from  the 
court  or  from  counsel  in  the  course  of  the  argument  as  to  the  effect 
of  that  decision  being  to  contravene  the  rule  of  law  by  which  every 
devisee  in  fee  has  a  testamentary  power.  But  it  is  plain,  on  looking  at 
the  cases,  that  if  a  man  says  the  estate  shall  go  over  it  you  do  not  ^ 

disjDose^bf  it  T)y  deedj,  Jie  says,  you  shaJLnot  have  thatL-power-wliich    >^(X.  •^^  ^'■^^'^■^*^ 
the  law^givesoj  disposition  _by_will.     That  jgojntseei'ns  riot  to^  have     ^-jnU^^S 
been  drawn  to  the  attention^  of  the  court^_and,  I  will  venture  to  add 
that,  if  that  case  of  Doe  v.  Glover  is  to  JDe  considered  as  conflicting 
with  the  other  authoritieSj^I^ think  that  the  other  authorities,  and  espe- 
cially the  case^of  Gulliver  v.  Vaux,  ought  tj)  prevail  against  it. 

Another  case  was  referred  to,  Borton  v.  Borton,  16  Sim.  552,  where 
the  disposition  was  to  the  daughter,  to  be  made  subject  to  her  dis- 
position ;  and  then  there  followed  a  power  to  her  to  dispose  of  the 
property  by  will.  But  that  case  proceeded  entirely  on  the  particular 
words  of  the  will.  The  Vice-Chancellor  of  England  evidently  con- 
sidered the  words  "to  be  subject  to  her  disposition  thereof,"  as  mean- 
ing to  be  subject  to  her  testamentary  disposition  and  as  referring  to 
tlie  ulterior  power  of  testamentary  disposition  given  to  her.  The  case, 
therefore,  depends  entirely  upon  the  particular  language  of  the  will, 
and  without  saying  whether  it  is  consistent  or  inconsistent  with  the 
case  of  Doe  v.  Thomas,  3  A.  &  E.  123,  and  the  principle  to  which  ]\Ir. 
Justice  Coleridge  referred  in  Doe  v.  Thomas,  it  is  not  material  to  the 
present  case. 

My  opinion  therefore  is,  that  the  answer  to  this  case  must  be  in 
favor  of  the  plaintiffs. ^^ 

IT  Accord:  In  re  Mortlock's  Trust,  3  K.  &  J.  450  (personal  property); 
Moore  v.  Sander.s,  15  S.  C.  440,  40  Am.  Rep.  703. 

In  Barton  v.  Barton,  3  K..  «&  J.  512,  W.  Page  AVood.  Vice  Chancellor,  on 
the  authority  of  Holmes  v.  G^r^oa,  held  that  after  an  absolute  freehold  in-  '^<tv'^(r^^ 
tei'est  in  realty  a  gift  over  on  the  first  taker  dyiiig  inresfale  was  void.  He 
saiJ:  "ir  is  unrortunate  that  a  decree  was  allowea  to  De  maae  m  tnis  cause, 
without  discussion,  in  the  face  of  an  authority  which  shews  that,  as  to  per- 
sonal  estate  at  least,  a  gift  over  in  the  event  of  the  legatee  dying  mtesfatfe, 
is  repugnant  and  void.  It  has  been  sinceniectded  Tn— the  T!rtse  ot  Holmes  v. 
Godson,  determined  by  the  Lords  Justices  in  March,  1856,  that  a  like  con- 
struction  is  to  be  put  upon^  a  similar  devise  of  real  estate;  and  that,  wheth- 
er the  subject  of  the  gift  be  reM'oF'persouaT  property,  ~a  giftjoyer  in  the 
event  of  the  decease ^nd  intestacy  of  the  party  jto  whom"  an  a^bsolute~uP 
tercsfts^given  by' the  wiUi  Is  repngnant  and  void/^~^ 


G18  ILLEGAL  CONDITIONS  AND   RESTRAINTS  CPatt  5 

SHAW  V.  FORD. 
(Chancery  Division,  1S77.     7  Ch.  Div.  669.) 

William  Shaw,  by  his  will,  dated  the  31st  of  March,  1836,  devised 
as  follows: 

"I  do  hereby  give,  devise,  and  bequeath  unto  my  four  sons,  Thomas 
Shaw,  John  Shaw,  William  Shaw,  and  Jesse  Shaw,  share  and  share 
alike,  all  and  every  of  tliose  my  thirteen_dwelling-houses  situate  in 
Wood  Street  and  Perry  Bank,  Lane  End,  in  the  parish  of  Stoke-upon- 
Trent,  together  with  a  pew  in  the  south  aisle  of  Lane  End  Church,  to 
have  and  to  hold  subject  to  the  following  conditions.  First,  it  is  my 
will  and  desire  that  none  of  the  afore-mentioned  houses  or  lands,  witH 
the  exception  of  my  large  garden  in  Perry  Bank,  be  disposed  of  ^erFtTeT" 
by  division,  assignment,  transfer,  or  saie,^wItHouFTlie  written  consent 
and  approbation  ofjeach_and  every_of  ~th^em  my  tour  sOns,  ThomSs 
Shaw,  John  Shaw,  William  Shaw,  and  Jesse  Shaw,  theirTieirs,  assigns, 
or  representatives.  Secondly,  it  is  my  will  and  desire  that  if  need  be, 
the  afore-mentioned  garden  be  sold  to  meet  contingent  expenses ;  and 
furthermore,  it  is  my  will  and  desire  that,  until  the  before-mentioned 
distribution  of  the  property  is  made,  the  rents  and  proceeds  shall  come 
into  one  comr'on- f und,  and  be  divided  equally  amongst  my  four  sons, 
Thomas  Shaw,  John  Shaw,  William  Shaw,  and  Jesse  Shaw,  namely, 
at  Midsummer  and  Christmas,  first  deducting  all  reasonable  and  neces- 
sary charges  for  the  proper  maintenance  and  good  repair  of  the  afore- 
said property  which  repairs  are  to  be  deducted  out  of  the  rents.  Fur- 
thermore, it  is  my  will  and  desire  that,  if  there  should  be  no  lawful 
distribution  of  this  my  propertx_during  tITe~natural Jife"of  them  my 
f oiir  sons,  Thomas^haw,  John  Shaw,  William  Shaw,  and  Jesse  Shaw, 
it  shall  then  devolve  to_the  children  Jawfully  begotten_ofjhenijmy_jo^ 
sons!!  AndjTn  casa  any^oFTliese  iny  four  sons'^houkFdiewithout  is- 
sueTthen  it  is  my  further  will  and  desire  that  the  half-yearly  share  of 
the  rents  so  possessed  or  intended  to  be  possessed  by  them  or  him  shall 
in  that  case  devolve  to  the  widow  or  widows  of  such  deceased  son  or 
sons,  to  be  by  them  received  and  enjoyed  so  long  as  they  retain  their 
widowhood,  and  afterwards  it  shall  devolve  to  the  survivor  or  sur- 
vivors of  my  other  sons,  that  is  to  say,  to  my  grandchildren  and  to 
their  heirs  and  assigns,  to  be  divided  equally  amongst  them,  share  and 
share  alike  *  *  *  And,  as  to  all  the  rest,  residue,  and  remainder 
of  all  my  estate  and  effects  whatsoever  and  wheresoever  not  hereinbe- 
fore effectually  disposed  of,  I  do  hereby  give,  devise,  and  bequeath  the 
same  to  be  equally  divided  amongst  my  four  sons,  Thomas  Shaw,  John 
Shaw,  William  Shaw,  and  Jesse  Shaw,  share  and  share  alike."  And 
the  testator  appointed  his  sons  Thomas  Shaw  and  John  Shaw  execu- 
tors of  his  will.  The  testator  died  in  August,  1837,  and  his  will  was 
afterwards  proved  by  the  executors.  All  the  four  sons  survived  him. 
By  a  deed  dated  the  4th  of  October,  1838,  and  made  between  Jesse 


Ch.  1)         FORFEITURE  OF  ESTATES  OF  INHERITANCE  619 

Shaw  and  Eleanor  his  wife  of  the  first  part,  John  Shaw  of  the  second 
part,  WilHam  Shaw  of  the  third  part,  Thomas  Shaw  of  the  fourth 
part,  and  Frederick  Bishop  of  the  fifth  part,  and  duly  acknowledged 
by  Eleanor  Shaw,  Jesse  Shaw  (with  the  written  consent  of  Thomas, 
John,  and  William)  granted,  and  Eleanor  Shaw  released  to  Bishop  and 
his  heirs,  the  undivided  share  of  Jesse  Shaw  under  the  will  of  the  tes- 
tator in  the  thirteen  dwelling-houses,  with  the  land  thereunto  belong- 
ing, to  hold  the  same  unto  Bishop  and  his  heirs,  to  the  use  of  Thomas 
Shaw,  his  heirs  and  assigns  forever.  And  by  the  same  deed  Thomas 
Shaw  (with  the  written  consent  of  John,  William,  and  Jesse)  granted 
unto  Bishop  and  his  heirs  all  the  undivided  share  of  Thomas  under 
the  will  of  the  testator  in  the  same  hereditaments,  to  hold  the  same 
unto  Bishop  and  his  heirs,  to  the  use  of  Thomas  Shaw,  his  heirs  and 
assigns  forever.  William  Shaw  died  in  1846  intestate,  leaving  the 
plaintiff  George  Shaw,  his  eldest  son,  and  three  other  children  him 
surviving.  John  Shaw,  by  his  will,  dated  the  3d  of  February,  1851, 
devised  all  his  real  estate  to  trustees  on  certain  trusts,  and  he  died  on 
the  4th  of  November,  1853.  Thomas  Shaw,  by  his  will,  dated  the  14th 
of  September,  1858,  devised  his  real  estate  to  trustees  on  certain  trusts 
for  the  benefit  of  his  wife  and  children,  and  he  died  in  1859. 

The  bill  in  the  suit  was  filed  in  April,  1874,  by  George  Shaw  against 
grandchildren  and  great-grandchildren  of  the  testator,  and  it  prayed 
that  the  rights  and  interests  of  all  parties  interested  in  the  thirteen 
houses,  with  the  land  attached  thereto  (other  than  the  garden  at  Perry 
Bank),  devised  by  the  testator's  will,  might  be  ascertained  and  declared 
by  the  court ;  that  the  houses  might  be  sold  under  the  direction  of  the 
court,  and  the  proceeds  of  sale  divided  among  the  persons  interested 
therein  according  to  their  respective  interests,  or  that  a  partition  of  the 
property  might  be  made. 

Fry,  J.  The  question  in  this  case  arises  on  the  will  of  a  testator  of 
the  name  of  William  Shaw,  and  it  is  shortly  this :  whether  or  not  a 
certain  executory  devise  is  valid  or  invalid,  the  plaintiff  asserting  its 
invalidity,  and  some  of  the  defendants  asserting  its  validity.  [His 
Lordship  stated  the  provisions  of  the  will,  and  continued:] 

Now,  the  first  question  is  what  estate  do  the  four  sons  take  in  this 
specifically  devised  property,  before  we  come  to  that  portion  of  the  will 
which  gives  it  over  in  the  event  of  there  being  no  lawful  distribution? 
In  my  opinion  the  sons  take  estates  as  tenants  in  common  in  fee  simple. 
I  think  that  it  is  clear  they  take,  if  at  all,  as  tenants  in  common,  be- 
cause they  are  to  take  "share  and  share  alike."  The  only  question 
which  requires  any  attention  is,  whether  they  take  for  life  or  in  fee  sim- 
ple. I  am  of  opinion  that  the  expression  of  the  testator's  desire  that 
none  of  the  houses  be  disposed  of  either  "by  division,  assignment, 
transfer,  or  sale  without  the  written  consent  of  each  and  every  of  the 
four  sons,  their  heirs,  assigns,  or  representatives,"  shows  that  the  tes- 
tator considered  the  heirs  of  the  four  sons  as  having  an  estate  in  the 
property,  which  they  could  only  have  in  the  event  of  its  being  a  fee 


(JL'O  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  5 

simple  estate.  There  is,  in  my  opinion,  a  devise  of  this  particular 
property  to  the  four  sons  as  tenants  in  common  in  fee. 

Then  comes  the  devise  over  which  i  have  already  read.  It  will  be 
observed  that  the  terms  are,  "if  there  should  be  no  lawful  distribution 
of  this  my  property  during  the  natural  life  of  these  my  four  sons," 
and  then  it  is  given  over  in  a  certain  way  the  details  of  which  I  will 
not  repeat. 

Now,  it  is  to  be  observed  that  the  period  during  which  the  contin- 
gency there  referred  to  may  arise  is  "the  natural  life  of  the  four  sons," 
that  is  to  say,  the  period  of  the  joint  lives  of  all  the  four  sons.  The 
next  inquiry  is,  what  is  the  nature  of  the  event  which  constitutes  the 
contingency  upon  which  the  executory  devise  is  to  take  effect.  It  is  if 
there  is  no  lawful  distribution  of  the  property  amongst  the  four  sons, 
in  other  words,  in  the  absence  of  a  partition  during  their  joint  lives. 
Now  the  right  of  all  the  tenants  in  common  of  an  estate  is,  if  they  so 
think  fit,  to  enjoy  it,  not  in  severalty,  but  as  tenants  in  common  of  an 
undivided  estate ;  and  therefore  the  contingency,  in  its  nature,  is  the 
exercise  of  a  right  which  attaches  to  every  tenant  in  common  of  an 
undivided  estate. 

The  next  inquiry  is,  at  what  period  is  that  executory  devise  over  to 
take  effect,  if  at  all.  The  answer  is  that  it  is  to  take  effect  at  the  death 
of  each  of  the  four  sons.  It  is  quite  true,  as  I  have  already  pointed 
out,  that  the  period  during  which  it  may  arise  is  that  of  the  joint  lives, 
and  therefore  it  will  take  effect  with  regard  to  the  son  who  dies  first 
at  the  very  moment  when  the  contingency  is  determined ;  but  with  re- 
gard to  the  other  sons  the  contingency  will  be  determined  at  an  earlier 
period  than  their  deaths,  though  the  devise  will  come  into  operation  at 
the  death  of  each  of  them  respectively. 

Now  that  being  so,  I  have  to  inquire  what  are  the  general  principles 
of  law  applicable  to  such  a  case?  They  may,  I  conceive,  be  stated  in 
this  way.  Prima  facie,  and  speaking  generally,  an  estate  given  by  will 
may  be  defeated  on  the  happening  of  any  event ;  but  that  general  rule 
is  subject  to  many  and  important  exceptions.  One  of  those  exceptions 
may,  in  my  opinion,  be  expressed  in  this  manner,  that  any  executory 
devise,  defeating  or  abridging  an  estate  in  fee  by  alteriiig~tRe~^mTr5'e 
of  'iIs'~dev^TLiTion7wlTtdris~to^akF^  at  the  moment  of  devolution 

and  at  no  other  time,  is  bacT  TheTea^un  alleged  for  that  is  the  con- 
tradiction or'^ontrariety^etween  the  principle  of  law  which  regulates 
the  devolution  of  the  estate  and  the  executory  devise  which  is  to  take 
effect  only  at  the  moment  of  devolution,  and  to  alter  its  course.  I  am 
not  bound  to  inquire  into  the  logical  sufficiency  of  the  reason  given, 
because  it  appears  to  me  that  the  exception  is  well  established  by  the 
cases  of  Gulliver  v.  Vaux,  8  D.  M.  &  G.  167,  n. ;  Holmes  v.  Godson, 
Ibid.  152;  and  Ware  v.  Cann,  10  B.  &  C.  433.  Another  exception  to 
the  general  proposition  which  I  have  stated  is  this,  that  any  executory 
devise  which  is  to  defeat  an  estate,  and  which  is  to  take  effect  on  the 
exercise  of  any  of  the  rights  incident  to  that  estate,  is  void ;  and  there 


Ch.  1)         FORFEITURE  OF  ESTATES  OF  INHERITANCE  621 

again  the  alleged  reason  is  the  contrariety  or  contradiction  existing  be- 
tween the  nature  of  the  estate  given  and  the  nature  of  the  executory- 
devise  over.  A  very  familiar  illustration  is  this,  that  any  executory  de- 
vise to  take  effect  on  an  alienation,  or  an  attempt  at  alienation,  is  void, 
because  the  right  of  alienation  is  incident  to  every  estate  in  fee  simple 
as  to  every  other  estate.  Another  illustration  of  the  same  principle  is 
that  which  arises  where  the  executory  devise  over  is  made  to  take  ef- 
fect upon  not  alienating,  because  the  right  to  enjoy  without  alienation 
is  incident  to  the  estate  given.  Now  that  exception  is  fully  justified 
by  the  cases  of  Bradley  v.  Peixoto,  3  Ves.  324;  Ross  v.  Ross,  1  Jac. 
&  W.  154;  and  In  re  Yalden,  1  D-  ^I-  &  G.  53.  It  is  true  that  in 
some  of  the  earlier  cases,  such  as  Dog  v.^lover,  1  C.  B.  448,  and  Wat- 
kins  V.  Williams,  3  Mac.  &  G.  622,  a  distinction  was  taken  between 
realty  and  personalty,  but  that  was  overruled  in  Holmes  v.  Godson, 
and  It  never  Tiad  anything^  the  nature  of  pxiiiciple-ap-4xasQn  to-sup- 
port  it.  1  think,~^therefore,  that  these  exceptions  to  the  general  rule 
are~well  established. 

That  being  so,  it  only  remains  to  be  observed  that  the  executory 
devise  in  the  present  case  is  within  both  of  these  exceptions.  It  is 
within  the  first,  because,  as  I  have  pointed  out,  although  the  period 
during  which  the  contingency  is  to  be  determined  is  that  of  the  joint 
lives  of  the  four  sons,  the  time  at  which  the  devise  over  is  to  take  effect 
is  the  death  of  each  of  the  sons,  that  is,  the  moment  when  the  estate 
devolves.  It  takes  effect  at  the  moment  of  devolution,  but  at  no  other 
time,  and  altering,  as  every  executory  devise  must  alter,  the  course  of 
devolution,  it  is  bad  upon  that  ground.  It  is  equally  bad  under  the 
second  exception,  because  the  event  upon  which  it  is  to  take  effect  is 
the  exercise  of  a  right  w-hich  is  incident  to  the  estate  in  fee  simple 
already  given  to  the  tenants  in  common,  namely,  the  right  to  enjoy 
without  alienation.  It  is  bad  as  being  a  gift  over  upon  the  exercise  of 
that  right. 

For  these  reasons  I  hold  that  the  plaintiff's  contention  is  correct.  I 
make  a  declaration  to  the  effect  that  the  devise  over  is  bad,  and  that 
the  four  sons  took  estates  as  tenants  in  common  in  fee  simple.  There 
will  be  a  decree  for  sale  and  distribution  of  the  fund.^^ 

1 8  See,  also,  In  re  Jones,  [1S9S]  L.  R.  1  Ch.  4.38 ;  Lloyd  v.  Tweedy,  [1898] 
1  Ir.  5  (?ift  over  of  what  remains  at  the  first  taker's  death) ;  In  re  Jenkins' 
Trusts,  23  L.  R.  Ir,  162;    May  v.  Joynes,  20  Grat.  (Va.)  G92. 


622  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  5 

JACKSON  V.  ROBINS. 
(New  York  Court  of  Errors,  1819.     16  Johns.  537.) 

Tiir,  CHANCEI.LOR  [Kent].^^  This  is  an  action  of  ejectment 
brougl  t  by,  or  on  behalf  of  Catharine  Neilson,  formerly  Catharine 
Duer,  and  one  of  the  daughters  of  Lord  Stirling. 

It  appears,  by  the  special  verdict,  that  Lord  Stirling  was,  on  the  1st 
of  January,  1771,  seised  in  fee,  of  a  tract  of  3,000  acres  of  land  in 
Wallkifl,  in  the  now  county  of  Orange,  and  of  which  the  premises  in 
question  are  a  part.  That  in  that  year,  Ann  Waddell  recovered  a 
judgm';nt  against  him,  for  £7,790  of  debt,  and  which  judgment,  upon 
the  derith  of  Ann  Waddell,  was  revived  by  scire  facias,  in  1775.  That 
Lord  Stirling  died  in  1783 ;  and,  in  1788,  the  executors  of  Ann  Wad- 
dell, imdertook  to  revive  and  enforce  the  judgment  against  the  repre- 
sentatives of  Lord  Stirling.  A  scire  facias  was,  accordingly,  sued  out 
of  the  Supreme  Court  in  that  year,  directed  to  the  sheriff  of  N^ew 
York,  and  commanding  him  to  give  notice  to  the  heirs  of  Lord  Stir- 
ling, and  to  the  tenants  of  the  lands  in  his  bailiwick,  which  were  bound 
by  the  judgment,  to  show  cause,  if  any  they  had,  why  the  debt  should 
net  be  levied  on  those  lands.  To  this  writ  of  scire  facias  the  sheriff 
returned,  that  he  had  made  known  to  Mary  Watts  and  Catharine 
Duer,  who  were  daughters  and  heiresses  of  Lord  Stirling,  to  appear 
i  1  the  Supreme  Court,  and  show  cause,  if  any,  why  the  debt  should 
lot  be  levied  on  those  lands.  The  sheriff  further  returned,  that  there 
kvere  no  other  heirs  of  Lord  Stirling  nor  any  other  tenants,  or  any 
lands  in  his  bailiwick,  bound  by  the  judgment.  The  heirs  did  not  ap- 
pear according  to  the  summons,  but  made  default,  and  judgment  was 
thereupon  awarded,  that  the  executors  of  Waddell  should  have  execu- 
tion against  those  heirs  of  the  lands  which  were  of  Lord  Stirling,  in 
1771,  and  in  their  hands  and  possession.  In  the  same  year,  execution 
issued  upon  the  judgment  so  revived,  to  the  sheriff  of  Ulster,  com- 
manding him  to  levy  the  debt  and  costs  of  the  lands  in  his  bailiwick, 
whereof  Lord  Stirling  was  seised  in  1771,  and  in  the  hands  and  pos- 
session of  those  heirs.  The  sheriff  stated,  that  he  had  seized  certain 
lands  which  were  of  Lord  Stirling,  and  of  which  he  was  seised  in 
1771,  in  the  hands  and  possession  of  those  heirs,  and  sold  them  to 
John  Taylor.  The  premises  in  question  were  part  of  the  lands  so 
seized  and  sold,  and  John  Taylor,  in  1794,  conveyed  them  to  Samuel 
Harlow,  who  entered  into  possession,  and  iri  1795,  sold  them  to  the 
father  of  the  present  defendant,  who  continued  in  possession  from 
1795  to  1814,  when  he  died,  and  the  estate  descended  to  the  defendant, 
as  his  son  and  heir  at  law. 

From  this  state  of  facts,  it  appears  that  here  has  been  an  actual 
bona  fide  possession,  under  the  sheriff's  deed,  of  25  years,  and  it  is  31 

19  The  facts  are  stated  in  the  opinion  of  the  Chancellor^ 


Ch.  1)         FORFEITURE  OF  ESTATES  OF  INHERITANCE  623 

years  since  Catharine  Duer  was  personally  summoned,  as  one  of  the 
heirs  of  Lord  Stirling,  to  show  cause  why  the  judgment  debt  against 
Lord  Stirling  should  not  be  levied.  The  defence  set  up  against  this 
action  is  twofold,  and  consists,  L  Of  a  title  under  the  sheriff's  deed: 
2.  Of  a  legal  protection  under  the  Statute  of  Limitations.  If  this  de- 
fence should  prove  ineffectual,  then  the  lessor  of  the  plaintiff,  Catha- 
rine Neilson,  as  one  of  the  daughters  and  heirs  of  Lord  Stirling, 
would  be  entitled  to  an  undivided  moiety  of  the  premises.  But  she 
sets  up  a  claim  to  the  whole  land,  not  as  heir,  but  as  devisee  under  her 
father!  Lord  Stirling,  by^iis  will,  devTsed  "all  his  real  and  personal 
estaT^e,  whatsoever,"unto  His  wile  SaraF,  to  hold  the  same  to  her,  her 
executors,  administrators  and  assigns ;  out  in  case  of  her  death",  with- 
oiiT'giving,  devising,  arid^beqTreattTing^T-'mii7T5r'6t1ier\vise  sehing^or 
assigning  the  said  estate,  or  any  part  thereof,  then  he  devised  all  such 
estate,  or  all  such  parts  thereof  as  should  so  remanrunsord,  undevised 
or  unbequeathed,  unto  his  daughter  Catharine  Duer,  to  hold  the  same 
to  her,  her  executors,  administrators  and  assigns."  The  claim,  how- 
ever, whether  as  heiress,  or  as  devisee,  is  still  under  Lord  Stirling,  and 
subject  to  the  judgment  of  Ann  Waddell.  In  whatever  shape  Catha- 
rine Duer,  now  Catharine  Neilson,  may  put  forward  her  claim,  she 
still  is  the  very  person  who  was  personally  summoned  in  1788,  to 
show  cause  why  that  judgment  should  not  be  levied,  and  who,  by  her 
silence  and  default,  admitted  she  had  nothing  to  say. 

None  of  the  facts  in  the  case,  are  the  subject  of  dispute.  The  ex- 
istence and  validity  of  the  judgment  debt,  at  the  time  of  the  scire  fa- 
cias, and  of  the  sheriff's  sale,  is  not  questioned.  That  the  premises 
were  owned  by  Lord  Stirling,  in  1771,  and  legally  bound  by  the  judg- 
ment, is  not  denied :  that  they  were  unoccupied  in  1788,  and  that 
there  was  no  actual  tenant  upon  the  land  to  summon,  is  granted. 
Neither  the  original  judgment,  nor  the  judgment  upon  the  scire  fa- 
cias, nor  the  execution  thereon,  have  ever  been  impeached,  either  by  a 
writ  of  error,  or  by  application  to  the  Supreme  Court,  on  the  ground 
of  irregularity.  They  all  stand,  to  this  moment,  and  after  a  lapse  of 
upwards  of  thirty  years,  as  valid  proceedings,  upon  record.  The  de- 
fence, therefore,  in  any  view  of  the  case,  is  very  imposing:  and  if, 
in  the  face  of  all  these  facts,  the  claim  of  the  heir  or  devisee  could  be 
sustained  in  an  action  of  ejectment,  against  the  present  defendant,  I 
should  apprehend  that  it  would  communicate  a  very  injurious  inse- 
curity to  title  under  judgment  and  execution. 

1.  The  first  point  to  be  considered  is,  whether  the  defendant  has 
not  a  good  title  under  the  sheriff's  deed. 

[This  part  of  the  opinion  is  omitted.  The  learned  Chancellor  was 
of  opinion  that  the  defendant  had  a  good  title  under  the  sheriff's 
deed.] 

If  I  am  correct  on  this  branch  of  the  defence,  it  would  be  unnec- 
essary to  go  farther.  The  judgment  of  the  Supreme  Court  must  be 
affirmed.     But,  perhaps,  my  opinion  may  not  meet  with  the  entire 


624  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  5 

concurrence  of  the  court,  on  this  point ;  and  as  the  other  head  of  the 
defence  arising  upon  the  Statute  of  Limitations,  occupied  the  largest 
and  most  intricate  part  of  the  argument  of  the  counsel,  I  should  not 
feel  satisfied  with  myself,  if  I  did  not  pay  some  attention  to  so  learned 
a  discussion. 

If  Lady  Stirling  took  an  estate  in  fee  under  the  will  of  Lord  Stir- 
ling, then  at  her  death,  Mrs.  Neilson  would  have  been  entitled,  as  one 
of  her  heirs,  to  an  equal  undivided  moiety  of  all  her  interest  in  the 
premises.  But  if  Lady  Stirling  took  a  fee,  then  an  adverse  possession 
commenced  when  Harlow  entered  into  possession  under  John  Tay- 
lor, in  1794,  and  the  Statute  of  Limitations  began  to  run  against  her, 
for  she  was  then  under  no  disability.  When  the  Statute  once  begins 
to  run,  it  continues  to  run  until  the  twenty  years  have  expired,  and, 
therefore,  not  only  Lady  Stirling,  but  all  who  claim  under  her  by 
will  or  by  inheritance,  were  bound  in  1814,  and  before  the  commence- 
ment of  this  suit.  The  question,  therefore,  as  to  what  estate  Lady 
Stirling  took  under  the  will,  becomes  material  only  by  its  influence 
upon  this  other  question  of  the  Statute  of  Limitations ;  and  it  was 
quite  entertaining  to  see  how  industriously  and  profoundly  the  coun- 
sel were  obUged  to  labor  upon  the  one  question  merely  to  bring  it  to 
bear  upon  the  other. 

This  question  is  also  supposed  to  have  been  decided  by  this  court 
in  the  former  cause  of  Jackson  v.  Delancy,  13  Johns.  537.  But,  I  ap- 
prehend, that  the  decision  of  this  court  in  that  case  does  not  rest  at 
all  upon  this  point,  and  I  barely  mentioned  in  the  opinion  which  I 
then  delivered,  that  Lady  Stirling  did  take  a  fee  under  Lord  Stirling's 
will,  and  that  the  devise  over  to  his  daughter  Catharine  Duer  was  not 
a  good  limitation  by  way  of  executory  devise.  I  relied  for  this  upon 
the  decision  of  the  Supreme  Court  in  Jackson  v.  Bull,  10  Johns.  19, 
and  observed,  that  nothing  had  been  urged  to  show  why  that  decision 
was  not  to  be  regarded  as  correct.  It  is  that  decision,  then,  and  not 
the  one  in  this  court,  which  I  think  governs  this  question.  If  that  de- 
cision be  sound,  then,  according  to  the  principle  of  it,  Lady  Stirling 
did  take  an  estate  in  fee ;  and,  notwithstanding  all  that  has  been  said 
or  suggested  to  the  contrary  in  the  court  below  (vide  15  Johns.  171, 
172),  I  am  obliged  still  to  be  of  the  opinion,  that  it  was  a  well-founded 
decision. 

Suffer  me,  for  one  moment,  to  re-examine  its  foundations.  Redit 
labor  actus  in  orbem. 

The  testator,  in  that  case,  devised  to  his  son  Moses,  and  to  his  heirs 
and  assigns  forever,  a  lot  of  land,  and  then  added,  that  in  case  his  son 
should  die  without  lawful  issue,  the  property  he  died  possessed  of,  he 
gave  to  his  son  Young.  Moses,  the  son,  did  die  in  possession  of  the 
property,  and  without  lawful  issue,  but  he  devised  it  by  will,  to  his 
wife  and  others,  under  whom  the  plaintiff  claimed,  in  opposition  to  the 
devise  over  to  the  other  son. 


Ch.  1)         FORFEITURE  OF  ESTATES  OF  INHERITANCE  625 

The  counsel  for  the  plaintiff,  contended,  that  the  limitation  over  by 
way  of  executory^evise^yas^yojd,  because  repugnairt  to  the  absolute 
power  of  disposal  given  by  the  will  tD_JMoses.  who  was  thereby  en- 
abled  to  defeatTt.  The  court  unanimously  acceded  to  that  principle, 
and  cited  authorities  in  support  of  it,  and  gave  judgment  for  the  plain- 
tiff. 

The  first  case  that  the  court  then  relied  upon,  was  that  of  The  At- 
torney-General  v.  Hall,  Fitzg.  314,  decided  in  1731  by  Lord  Chancel- 
lor KTngTassisTecrbyThe  Master  of  the  Rolls  and  Chief  Baron  Reyn- 
olds. Hall,  the  testator,  owning  real  and  personal  estate,  gave  it,  by 
will,  to  his  son,  and  to  the  heirs  of  his  body,  and  if  he  should  die, 
leaving  no  heirs,  then  he  gave  so  much  of  the  real  and  personal  es- 
tate as  his  son^hould  be_possessed  of  at  his^death,^to  the^oldsmij:hs* 
Company^t  London,  for  charitable  purpo^ses.  A  limitation  over  for 
such  a  purpose  Tiad  strong  claims  upon  the  protection  of  a  court  of 
chancery,  and  I  hope  that  I  may  be  excused  for  making,  as  a  passing 
remark,  that  the  will  awakens  interesting  associations  from  another 
circumstance,  which  is,  that  Sir  Isaac  Newton  was  one  of  the  execu- 
tors. The  son  alienated  the  real  estate  by  a  common  recovery,  and 
bequeathed  the  personal  estate  by  will  to  his  wife,  and  died  without 
issue.  The  question  arose  between  the  wife,  claiming  under  the  will, 
and  the  Goldsmiths'  Company  claiming  by  virtue  of  the  limitation 
over  on  the  event  of  the  son  dying  without  issue.  The  case  was  fully 
and  ably  argued,  and  there  was  no  distinction  made  between  the  real 
and  the  personal  estate,  as  to  the  validity  of  the  limitation  over. 
The  court  were  unanimously  of  the  opinion,  that  the  Goldsmiths' 
Company  had  no_Valid  clajm^jid^  thatjthe  limita^tion  over  was  Void, 
because  the  absolute  ownership  had  been  given  to  the  son ;  for  the 
property  was  given  to  -him  and  the  heirs  of  his  body,  and  the  com- 
pany were  to  have  no  more  than  he  should  leave  unspent,  and,  there- 
fore, he  had  a  power  to  dispose  of  the  whole.  The  words  that  gave 
him  an  estate  tail  in  the  land,  gave  him  the  entire  property  in  the  per- 
sonal estate,  and  nothing  remained  to  be  given  over  by  the  testator. 

The  point  of  that  case  then  was,  that  where  an  estate  is  given  to  a 
man^  and  tne  neirs  ot  nis  body,  with  a  power  of  disposal,  at  his  own 
will  and  pleasure,  it  carries  with  it  an  absolute  ownership,  repugnant 
to'ahy  limitation  over.  anfrTlestmctivp  of  it.  The  court  did  not  make 
any  distinction  between  the  real  and  personal  estate,  and  say,  that  the 
hmitation  over  was  good  as  to  the  one,  and  void  as  to  the  other. 
They  said,  generally,  that  the  limitation  over  in  the  will  was  void,  be- 
cause the  testator  gave  the  son  an  unqualified  power  to  spend  the 
whole. 

The  other  case  that  the  court  relied  on  in  Jackson  v.  Bull,  was  Ide 

V.  Ide,  5  Mass.  500,  decided  in  the  Supreme  Court  of  Massachusetts, 

in  1805.    There  the  testator  gave  by  will,  to  his  son,  and  to  his  heirs 

and  assigns  forever,  certain  real  and  personal  estate,  and  then  added, 

4  Kales  Prop. — 40 


626  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  5 

that  if  the  son  died  without  heirs,  the  estate  which  he  should  leave 
was  to  be  equally  divided  between  two  other  persons.  The  son  did 
die  without  leaving  heirs,  and  the  question  arose  between  those  claim- 
ing the  real  estate  under  the  limitation  over,  and  those  claiming  it 
under  a  conveyance  from  the  son.  The  opinion  of  the  court  was  de- 
livered by  the  late  Ch.  J.  Parsons,  whose  character,  as  a  lawyer  and  a 
judge,  is  held  in  universal  reverence.  He  cited  and  relied  upon  the 
case  of  The  Attorney-General  v.  Hall,  and  said,  that  "whenever  it  is 
the  clear  intention  of  the  testator  that  the  devisee  should  have  an  ab- 
solute property  in  the  estate  devised,  a  limitation  must  be  void,  be- 
cause it  is  inconsistent  with  the  absolute  property  supposed  in  the  first 
devisee.  And  a  right  in  the  first  devisee  to  dispose  of  the  estate  de- 
vised, at  his  pleasure,  and  not  a  mere  power  of  specifying  who  may 
take,  amounts  to  an  unqualified  gift."  He  then  applied  the  rule  to 
the  case  before  him,  and  observed,  that  "the  absolute  unqualified  in- 
terest in  the  estate  devised,  was  given  to  the  son,  which  was  incon- 
sistent with  the  limitation  over,  and,  consequently,  the  limitation  was 
void."  20 

The  error,  in  the  case  of  Jackson  v.  Bull,  said  the  learned  counsel,, 
was  in  applying  the  English  case  to  the  real  estate,  when  it  was  appli- 
cable only  to  chattels.  But  the  Supreme  Court  of  Massachusetts  were 
then  in  the  same  error,  for  they  equally  so  applied  it.  "The  limitation 
over,"  says  Chief  Justice  Parsons,  "makes  no  distinction  between  the 
real  and  personal  estate,  operating  only  on  such  part  of  either,  as  the 
first  devisee  should  leave."  In  both  of  those  cases,  the  devise  was  of 
real  and  personal  estate  in  the  same  sentence,  and  the  same  limitation 
over  was  created  as  to  each ;  and  neither  the  English,  nor  the  Massa- 
chusetts court,  admitted  any  difference  in  the  rule  of  construction,  or 
in  the  operation  of  the  power  of  alienation,  whether  applied  to  the 
limitation  of  the  real  or  of  the  personal  estate. 

I  do  not  know  that  either  of  those  two  last  decisions  have  ever 
been  questioned  in  any  court,  or  by  any  author.  They  were  pro- 
nounced by  the  highest  judicial  authorities ;  and  Lord  Hardwicke  (1 
Ves.  10)  gives  his  sanction  to  the  accuracy  of  the  English  case. 
Beachcroft  v.  Broome,  4  Term,  441,  decided  in  the  K.  B.  in  1791,  is 
in  confirmation  of  the  doctrine  of  the  prior  case.  That  was  the  case 
of  a  devise  to  B.  and  his  heirs,  and  if  he  die  without  having  settled, 
or  otherwise  disposed  of  the  estate,  or  without  leaving  issue  of  his 
body,  then  the  devise  over.  B.  sold  the  premises  in  fee,  and  died 
without  issue,  and  the  question  was,  whether  the  purchaser  took  an 
estate  in  fee,  and  the  K.  B.  held  clearly  that  he  did.    The  decision  is 

20  In  accord  with  Jackson  v.  Bull  and  Ide  v.  Ide,  see  the  following:  Flinn 
V.  Davis,  18  Ala.  132;  Kelley  v.  Meins,  135  Mass.  231;  Annin's  Ex'rs  v. 
Vandoren's  Adm'r,  1  McCart.  (14  N.  J.  Eq.)  135  (Personal  property) ;  Van 
Hornc  v.  Campbell,  100  N.  Y.  287,  3  N.  E.  316,  771,  53  Am.  Eep.  166;  Rid- 
dicli  V.  Cohoon,  4  Rand.  (Va.)  547  (personal  property ;  only  ground  of  de- 
cision was  uncertainty  in  the  subject-matter  which  would  go  over) ;  Melson 
V.  Cooper,  4  Leigh  (Va.)  408. 


Ch.  1)         FORFEITURE  OF  ESTATES  OF  INHERITANCE  627 

entirely  conformable  to  the  doctrine  in  The  Attorney-General  v.  Hall, 
and  Ide  v.  Ide,  and  Jackson  v.  Bull ;  but  a  single  expression  of  Lord 
Kenyon  is  seized  upon,  and  great  reliance  was  placed  upon  it  by  the 
counsel  for  the  plaintiff  in  this  cause.  Lord  Kenyon  said  (and  it  must 
have  been  in  loose  conversation  on  the  bench),  that  if  the  case  had 
turned  on  the  question  whether  that  was  an  estate  tail  in  B.,  he  should 
have  thought  it  extremely  clear  that  on  failure  of  the  first  limitation, 
the  second  ought  to  have  taken  effect  as  an  executory  devise.  Per- 
haps, the  meaning  of  Lord  Kenyon  is  not  to  be  clearly  understood. 
It  was  an  observation  not  required  by  the  decision,  nor  applicable  to 
the  point ;  but  let  it  mean  what  it  may,  are  we  to  permit  such  a  loose 
remark  to  be  of  any  weight  or  consideration,  in  opposition  to  the  de- 
liberate and  solemn  judgments  of  the  courts?  It  is  enough,  I  ap- 
prehend, merely  to  mention  such  a  dictum,  and  then  to  pass  it  by  in 
silence. 

If  we  now  apply  these  cases  to  the  will  of  Lord  Stirling,  we  can- 
not but  be  struck  with  their  perfect  and  controlling  application.  He 
does,  in  the  first  place,  devise  and  bequeath  unjto^  his  wifeSarah,  all 
his  real  andjpersonal  estate  whatsoever,  to  hold  the  same  to  her,  her 
executors,  administrators  and  assigns.  This  was  a  gift  in  fee.  THe 
word  estate,  in  a  will,  carries  the  land  and  all  theTest"ator's''interest 
in  it.  It  is  genus  generalissLmum,  said  Lord  Holt,  Countess  of  Bridg- 
water V.  Duke  of  Bolton,  1  Salk.  236,  and  includes  all  things  real  and 
personal.  The  words  all  his  estate  are,  in  a  will,  descriptive  of  his 
fee ;  and  in  a  subsequent  case,  Barry  v.  Edgworth,  2  P.  Wms.  523,  the 
Master  of  the  Rolls,  referring  to  this  opinion  of  Holt,  said,  that  the 
law  was  then  settled  on  the  point,  and  that  the  word  estate  compre- 
hended not  only  the  thing,  but  the  interest  in  it ;  and  as  it  had  been 
agreed  and  settled  to  convey  a  fee  in  a  will,  it  would  be  dangerous  to 
refine  upon  it.  So  again,  Lord  Mansfield  observed,  Roe  v.  Harvey, 
5  Burr.  2638,  that  the  word  estate  in  a  will,  carried  everything,  unless 
tied  down  by  particular  expressions.  And  in  a  subsequent  case. 
Holdfast  V.  ]\Iarten,  1  Term  Rep.  411,  Mr.  J.  Buller  said,  that  the 
word  estate  was  the  most  general  word  that  could  be  used,  and  words 
of  restraint  must  be  added  to  make  it  carry  less  than  a  fee.  And 
lastly  (for  I  will  not  fatigue  myself  with  further  citations  on  the 
point),  Mr.  J.  Paterson,  of  the  Supreme  Court  of  the  United  States, 
declared,  Lambert  v.  Paine,  3  Cranch,  134,  2  L.  Ed.  Z77 ,  that  the 
word  estate  was  the  most  general,  significant,  and  operative  word, 
that  can  be  used  in  a  will ;  and  it  comprehends  both  the  land  and  the 
inheritance. 

We  may  say,  then,  that  Lord  Stirling,  by  the  first  part  of  his  will, 
gave  an  estate  in  fee  to  his  wife.  So  he,  also,  repeated  this  gift  of  a 
fee,  by  the  next_clause  in  thejvill.  when  he  admits^^expressl^  that  she 
has  the  power  and  the  rigjjt  to  giv£,  devia£j_and__bequeath7or  sell  "or 
assi^nTlTe^sHte^I^Qr^QV^paHlfHer^  This  power,  of  itself,  is  an  at-" 
tribute  of  ownership,  and  carries  with  it  a  fee.     Thus,  as  early  as  6 


G28  ILLEGAL   CONDITIONS  AND   RESTRAINTS  (Part  5 

Eliz.,  Dalison's  Rep.  58,  it  was  held  by  the  judges,  that  if  a  man  de- 
vises land  to  his  wife,  to  dispose  of  and  employ  it  upon  herself  and 
her  son,  at  her  pleasure,  she  takes  a  fee.  So  again,  Lord  Coke  says, 
Co.  Lit.  9,  6,  that  if  a  man  devises  land  to  another,  to  give  and  to  sell ; 
this  amounts  to  a  devise  in  fee ;  for,  in  a  will,  the  word  heirs  is  not 
necessary  to  create  an  estate  of  inheritance.  There  are  many  other 
cases  to  the  same  effect,  which  I  need  not  particularly  mention  (Moor. 
57;  2  Atk.  102;  2  Johns.  Rep.  391),  and  we  may  lay  it  down  as  an  in- 
controvertible rule,  that  where  an  estate  is  given  to  a  person  gener- 
ally, or  indefinitely,  with  a  power  of  disposition,  it  carries  a  fee ;  and 
the  only  exception  to  the  rule  is,  where  the  testator  gives  to  the  first 
taker  an  estate  for  life  only,  by  certain  and  express  words,  and  an- 
nexes to  it  a  power  of  disposal.  In  that  particular  and  special  case, 
the  devisee  for  life  will  not  take  an  estate  in  fee,  notwithstanding  the 
distinct  and  naked  gift  of  a  power  of  disposition  of  the  reversion. 
This  distinction  is  carefully  marked  and  settled  in  the  cases.  Tom- 
linson  v.  Dighton,  1  Salk.  239;  1  P.  Wms.  149,  s.  c. ;  Crossling  v. 
Crossling,  2  Cox,  396;  Reid  v.  Sbergold,  10  Ves.  370;  Goodtitle  v. 
Otway,  2  Wils.  6. 

The  question  then  occurs,  was  the  limitation  over  to  Mrs.  Duer 
valid,  after  the  creatTorTof  such  an  estate  in  fee.  The  words  ol  the" 
win~were.  that  "m  case  of  the  death  o't  his  wife,  without  giving,  de- 
vising, and  bequeathing  by  will,  or  otherwise  selling  or  assFgning  flie 
estat^7or  any  part  thereof,  he  doth  give  and  devise  all  such  estate  as 
should  so  remain  unsold,  undevised,  or  unbequeathed  to  his  daughter, 
Lady  Catharine  Duer,"  &c.  This  limitation  over,  must  be_either  as 
a  remainder,  or  as  an  executory  devise,  and  it  is_[mpossible  that  it 
shcujld  _be_either,  upon  any  laio\yn  principles  of  law.  ^^^ToT^iTiaindeF 
can  be  limited  after  an  estate  in  fee,  and,  therefore,  if  a  devise  be  to 
A.  and  his  heirs,  and  if  he  die  without  heirs,  then  to  B.,  the  remain- 
der is  repugnant  to  the  estate  in  fee,  and  void.  Preston  v.  Funnell, 
Willes'  Rep.  164;  Pells  v.  Brown,  2d  point,  Cro.  Jac.  590.  Nor  can 
the  limitation  over  operate  by  way  of  executory  devise,  because  the 
power  to  dispose  of  the  estate  by  will  or  deed,  which  Lord  Stirling 
gave  to  his  wife,  is  fatal  to  the  existence  of  that  species  of  interest. 
It  IS  a  clear  and  settled  rule  M  laTw,  that  an  executory^_^|vise]^annot 


be  prevented"or^e7eated  by  any  alteration  of  the  estate  out  of  winch, 
or  after  \vhTch,  it  is  limited,  or^by  any^ode  oT~corrveTaTn:g: — It  csm — -- 
not  be~crealecl,  and  iTcannot  llveunder  such  a~power~m  tlie  tirst  takeiT^ 
"These  Timitatiohs,"  says  Mr.  J.  Powell,  Scatterwood  v.  Edge,  1  SallcT^ 
229,''^^make  estates  unalienable,  for  e  very_executory  jleyiseis  a  per- 
petuitj^^:^g-"faT^iasiit_gpes, _that"~Ts" to  sayT^t  is  an  estate  unalienable, 
though  all  mankind^join  in  the  conveyance."    Vide  also,  2  Fearne,  p. 
51,  by  Powell;  2  Saun(1388,  d.  note^    We  are  obliged,  therefore,  to 
have  recourse  to  the  explicit  and  settled  doctrine,  in  the  cases  of  The 
Attorney  General  v.  Hall,  and  of  Ide  v.  Ide,  and  of  Jackson  v.  Bull, 
and  say,  that  an  absolute  ownership  or  capacity  to  sell,  in  the  first 


Ch.  1)         FORFEITURE  OF  ESTATES  OF  INHERITANCE  G29 

taker,  and  a  vested  right  by  way  of  executory  devise  in  another,  which 
cannot  be  affected  by  such  ahenation,  are  perfectly  incompatible  es- 
tates, and  repugnant  to  each  other,  and  the  latter  is  to  be  rejected  as 
void. 

Lord  Stirling  clearly  intended  to  give  his  wife  an  estate  in  fee.  The 
words  amount  to  demonstration  of  that  intention.  If  she  sold  the 
land,  she  was  not  accountable  for  the  proceeds.  She  could  not  be 
chargeable  with  waste,  and  she  might  mortgage,  or  encumber  the  land, 
for  that  is  included  in  the  right  to  give,  and  sell,  and  assign.  And 
when  he  attempted  to  engraft  an  executory  devise  or  limitation  over, 
upon  a  fee  with  such  an  absolute  power  of  control,  he  did  what  was 
incompatible  ~with~M^  oth&r~arid"principar~intelitron,  andT  wHTcTi  the 
courfs^musf^oT'necessity, "reject  as  repugnant  and  void!  ' 

TEerei^TTpt^aTcase'to'be  found,  in  which  a  valTd^executory  devise 
was  heldtojubsist  under  an  absolute  power  ot  alienation  in  the  first 
talker!  Thave  looked  at  the  cases  so~industriously  collected  I5y~lhe 
plamTiff's  counsel,  and  there  are  none  of  them  that  reach  tliis  point. 
All  executory  devises  may  be  said,  in  some  degree,  to  depend  upon  the 
will  or  discretion  of  the  owner  of  the  precedent  estate.  If  a  devise  be 
to  A.  in  fee,  but  if  he  die  without  issue  living  at  his  death,  then  over  to 
B.,  it  is  in  his  volition  and  power  (morally  speaking),  not  to  marr}%  or 
to  marry,  and  have  issue,  and  so  avoid  the  devise  over.  So,  if  the  lim- 
itation over  be  made  to  depend  upon  the  contingency,  that  the  first 
taker  marry  without  the  consent  of  B.,  or  marry  a  prohibited  person, 
he  may,  undoubtedly,  avoid  marrying  without  the  requisite  consent,  or 
avoid  marrying  against  the  prohibition,  and  so  defeat  the  limitation. 
But  these  distinctions  have  nothing  to  do  with  the  simplicity  and  good 
sense  of  the  general  rule  we  are  discussing.  The  first  taker,  in  these 
special  cases,  has  not  an  absolute  discretion  and  free  agency,  within  the 
meaning  of  the  rule.  The  sound  doctrine  on  the  subject  is,  that  an 
executory  devise  under  the  salutaiy^checks^providfid^forit^s  a  stable^ 
and  unalienable  interest,  and  the  first  taker  has  only^  the  use  of  the  land 
or  chattel,  pending  tEe  contingency  mentioned_in  the  will j_and he~can- 
not  convert  the  property  to  his  own  use,  and  defeat  the  subsequent 
estate  by  a  voluntary  alienation.  This  is  the  rule  for  which  we  con- 
tend, and  it  was  not  so  wTthXady  Stirling.  She  could  give  and  devise, 
and  she  could  sell  and  assign  the  estate  when,  and  to  whom,  and  for 
what  purpose  she  pleased.  She  was  a  free  moral  agent,  and  an  abso- 
lute and  independent  owner,  in  respect  to  the  estate.  This  is  what  we 
understand  by  a  right,  incompatible  with  an  executory  devise,  and  this 
is  what  we  are  to  understand  by  the  books,  when  they  speak  of  a  lim- 
itation over  as  being  void,  because  inconsistent  with  such  an  absolute 
power  and  dominion  in  fee. 

But  it  is  time  that  this  discussion  should  draw  to  a  close.  The  result 
of  my  inquiry,  is  a  belief  that  the  defendant  has  a  good  title  under  the 
judgment  and  execution,  and  that  if  he  had  not,  he  is,  nevertheless, 


630  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  5 

protected  by  the  Statute  of  Limitations,  because  Lady  Stirling  was 
seised  in  fee,  so  as  to  enable  the  Statute  to  run  against  her,  when  the 
adverse  possession  commenced,  in  1794.  Upon  either  ground,  if  cor- 
rect, the  judgment  must  be  affirmed.  During  the  examination  of  this 
subject,  I  have  not  been  insensible  to  the  weight  of  the  inquiry,  and 
more  especially,  as  one  of  the  judges  of  the  court  below  seems  to  think 
the  law  in  favor  of  the  claim.  The  counsel  for  the  plaintiff,  and  one 
of  them  a  son  of  a  lessor  of  the  plaintiff,  have,  indeed  labored  the 
points,  in  their  argument  annexed  to  the  case,  as  well  as  at  this  bar, 
with  a  diligence  and  painful  anxiety,  and,  no  doubt,  with  a  sincere  con- 
viction, that  has  excited  my  sympathy.  The  descendants  of  Lord  Stir- 
ling appear  to  feel,  that  a  rich  inheritance  has  been  Injuriously  snatched 
from  their  enjoyment,  but  I  think  it  was  fairly  lost  by  the  inability 
or  neglect  of  their  ancestor,  or  his  representatives,  to  redeem  the  en- 
cumbrance. And  if  the  law  was  with  the  plaintiff,  would  not  our  sym- 
pathies be  as  properly  directed  to  this  defendant,  whose  father  was  a 
bona  fide  purchaser  under  the  execution,  and  cultivated  the  premises  as 
his  own  for  20  years,  and  died  in  possession,  and  transmitted  the  fruit 
of  his  labor  to  his  son?  The  truth  is,  that  judges  are  bound  to  declare 
the  rules  of  law  strictly,  without  regard  to  consequences.  They  must 
follow  the  conclusions  of  the  understanding,  and  not  the  dictates  of 
the  heart.  If  the  argument  on  the  part  of  the  plaintiff  has  made  a  more 
favorable  impression  upon  others  than  it  has  upon  me,  I  shall  be  per- 
fectly contented.  I  am,  however,  obliged  to  say,  as  the  case  strikes 
me,  that  the  law  is  with  the  defendant,  and  that  the  judgment  ought  to 
be  affirmed. 

This  being  the  unanimous  opinion  of  the  court,  it  was,  thereupon, 
ordered,  adjudged  and  decreed,  that  the  judgment  of  the  Supreme 
Court  be  affirmed,  and  that  the  plaintiffs  in  error  pay  to  the  defend- 
ant in  error,  fifty  dollars  and  fifteen  cents,  for  his  costs  and  charges, 
in  and  about  his  defence  in  this  court ;  and  that  the  records  be  remit- 
ted, &c. 

Judgment  of  affirmance.^^ 


WILLIAMS  V.  ELLIOTT. 

(Supreme  Court  of  Illinois,  1910.    246  111.  548,  92  N.  E.  960,  138  Am.  St. 

Rep.  254.) 

CartwrighT,  J.  John  Laughrin  died  on  March  11,  1901,  leaving  a 
last  will  and  testament  dated  February  26,  1884,  which  was  admitted 
to  probate  in  the  county  court  of  Jo  Daviess  county.  By  the  will  he 
devised  about  260  acres  of  land  in  said  county  to  his  wife,  Margaret 
Laughrin,  foj;  life,  and  devised  the  remainder  after  the  said  life  estate 
as  follows :   "Subject  to  the  provisions  of  the  said  second  clause  of  my 

21  Contra:    Andrews  v.  Roye,  12  Rich.  536  (1860). 


Ch.  1)         FORFEITURE  OF  ESTATES  OF  INHERITANCE  631 

will  and  the  rights  of  my  wife  as  therein  specified,  I  give,  devise  and 
bequeath  unto  my  niece,  Phoebe  W.  Price,  and  unto  my  children, 
Mary  Fitzsimmons,  ivrontana  I^aughrin  and  Ra'cHael  Laughrin,  share 
and  share  alike,  all  my  estate,  real,  personal  and  rmxed,  of  every  name 
and  kind  and  wherever  situated,  that  exists  after  the  decease_ofmy 
wife,  aforesaid,  to  have  and  to  hold  the  same  unto~t:he  said  PhoeBe 
WrPric"e,~Mary  Fitzsimmons,  Montana  Laughrin  and  Rachael  Laugh- 
rin, and  their  heirs  and  assigns  forever.  But  in  case  the  said  Phoebe 
W.  Price  shall  not  dispose  of  the  said  estate  devised  to  her,  by  wilLor 
otherwise,  before  her  death,  and  should  die  without  issue,  seised  of 
saidTstate,  tTien  said  estate  herein  by  this  will  devised  to  said  Phoebe 
W.  Price  shall  go  to  and  vest  in  the  said  Mary  Fitzsimmons,  Montana 
Laughrin  andTTacTiaerLaughrin,  share  and  share  alike,  to  be  held  by 
them  a^d  their  heirs  and  assigns  forever."  Rachael  Laughrin,  one  of 
the  daughters,  became  the  wife  of  Alvin  O.  Elliott,  and  died  on  No- 
vember 10,  1899,  intestate,  leaving  her  husband  and  her  children.  True 
Elliott  and  Edna  Elliott,  surviving  her.  The  testator  left  surviving 
him  Margaret  Laughrin,  his  widow ;  Montana,  his  daughter,  who  had 
been  married,  and  whose  name  was  then  Montana  Williams ;  Mary 
Fitzsimmons,  his  daughter;  Edna  Elliott  and  True  Elliott,  his  grand- 
children ;  and  Phoebe  W.  Price,  his  niece — devisees  under  the  will ; 
the  grandchildren  taking  the  place  of  their  mother  by  virtue  of  the 
statute.  Phoebe  W.  Price  died  intestate  in  June,  1903,  without  having 
disposed,  by  will  or  otherwise,  of  the  land  devised  to  her,  and  she  left 
her  sister,  Eliza  Green,  her  only  heir  at  law.  Margaret  Laughrin  died 
on  February  15,  1907,  and  her  life  estate  terminated. 

On  May  15,  1909,  Montana  Williams  filed  her  bill  in  the  circuit 
court  of  Jo  Daviess  county,  alleging  that  the  title  to  said  lands  had 
become  vested  in  herself  and  Mary  Fitzsimmons,  Edna  Elliott,  and 
True  Elliott  in  fee  simple,  making  Eliza  Green  and  all  other  parties 
interested  defendants,  and  praying  for  partition.  Eliza  Green  an- 
swered, alleging  that  Phoebe  W.  Price  became  seised,  by  virtue  of  the 
will,  of  an  estate  in  fee  simple  to  an  undivided  one-fourth  of  the  lands, 
subject  to  the  life  estate  of  the  widow;  that  the  limitation  over  in  case 
slie  should  die  without  issue,  seised  of  the  estate  and  not  having  dis- 
posed of  the  same  by  will  or  otherwise,  was  void ;  and  that  said  estate 
was  then  vested  in  the  said  defendant,  Eliza  Green,  as  only  heir  at 
law  of  said  Phoebe  W.  Price.  Eliza  Green  also  filed  a  cross-bill,  mak- 
ing the  same  averments  and  praying  for  partition  accordingly.  The 
chancellor  sustained  exceptions  to  the  said  answer  and  a  demurrer 
to  the  cross-bill,  and  ruled  said  defendant  to  file  a  sufficient  answer  in- 
stanter.  She  stood  by  her  answer  and  cross-bill  and  refused  to  answer 
further,  whereupon  the  original  bill  was  taken  as  confessed  by  her,  and 
the  cause  was  referred  to  the  master  in  chancery.  Upon  the  coming 
in  of  the  report  of  the  master,  the  chancellor  found  and  decreed  in 
accordance  with  the  allegations  and  prayer  of  the  original  bill.    Eliza 


032 


ILLEGAL  CONDITIONS  AND   RESTRAINTS 


(Part  5 


Green  sued  out  a  writ  of  error  from  this  court  to  bring  the  record  here 
for  review,  and  joined  her  codefendants  with  her  as  plaintiffs  in  error 
by  virtue  of  the  statute.  The  parties  having  all  been  brought  into  court, 
an  order  of  severance  was  entered,  and  Eliza  Green  prosecutes  the  writ 
of  error  alone. 

By  the  will  the  testator  devised  to  his  niece  and  his  three  daugh- 
ters, and  their  heirs  and  assigns,  forever,  the  real  estate  in  question  in 
equal  shares,  subject  to  the  life  estate  of  his  wife,  Margaret  Laughrin. 
This  devise  was  in  fee  simple,  but  was  followed  by  a  provision  that 
the  estate  devised  to  Phoebe  W.  Price  should  go  to  the  three  daughters 
in  equal  shares,  in  fee  simple,  if  the  said  Phcebe  W.  Price  should  not 
dispose  of  said  estate,  by  will  or  otherwise,  before  her  death,  and 
should  die  without  issue,  seised  of  said  estate.  If  the  executory  de- 
vise was  valid,  the  plaintiff  in  error,  Eliza  Green,  has  no  interest  in 
the  real  estate ;  but,  if  it  was  void,  the  undivided  one-fourth  descended 
to  her  as  the  heir  at  law  of  Phoebe  W.  Price. 

Although  an  estate  in  fee  simple  is  devised,  it  may  be  limited  by  a 
subsequent  valid  provision  that  the  estate  shall  go  over  to  others  upon 
the  happening  of  a  certain  contingency.  The  estate,  when  so  limited, 
is  still  a  fee,  for  the  reason  that  it  will  last  forever  if  the  contingency 
does  not  happen ;  but  so  long  as  it  is  possible  that  the  contingency  may 
happen  it  is  a  base  or  determinable  fee.  One  of  the  contingencies  upon 
which  such  a  limitation  may  lawfully  rest  is  the  death  of  the  first 
devise©  without  issue,  and  so  far  as  the  executory  devise  in  this  case 
depended  upon  the  death  of  Phoebe  W.  Price  withoufjssj.ip  it  wg^, 
valid"  Ackless  v.  Seekright,  Breese,  76;  Summers  v.  Smith,  127  111. 
645^21  N.  E.  191;  Smith  v.  Kimbell,  153  111.  368,  38  N.  E.  1029; 
Strain  v.  Sweeny,  163  111.  603,  45  N.  E.  201 ;  Lombard  v.  Witbeck,  173 
111.  396,  51  N.  E.  61 ;  Gannon  v.  Peterson,  193  111.  372,  62  N.  E.  210, 
55  L.  R.  A.  701 ;  Johnson  v.  Buck,  220  111.  226,  77  N.  E.  163. 

There  is,  however,  an  equally  unquestioned  rule  of  law  that  an  ex- 
ecutory devise^cpnnnf  hp  created  if  the  estate  devised  to_the_first 
devisee  is  such  that  he  can,  b 


virtue  of  his  ownership,  alienale--the- 
An  executdrv"  devise  Is  indestructible  by  anyact 


estate  in  fee  simple^ 

ofTlie  owneFoF^e^  preceding  estate ;  and,  if  the  owner  of  a  deter- 
minable fee  conveys  in  fee,  the  determinable  equality:  ojjthe_fee_follo:^s 
the  transfer.  4  Kent's  Com.  10;  Smith  v.  Kimbell,  supra.  It  neces- 
sarily follows  that  if_the_first_de\'is£^iasjin  estnte  which  he  can  convey 
in  feesirnple^  so  as  todestroy  an  attempted  limitation  over,  such  limi- 
tation  IS  void!  If  theTe^  aiT  absolute" power  of  disposition^  the  first 
devisee",  fhe  limitation  over  is  void  as  a  remainder,  because  of  the  pre- 
ceding fee,  since  a  remainder  implies  something  left,  and  there  can  be 
nothing  left  after  a  devise  in  fee  simple.  It  is  also  void  as  an  executory 
devise,  because  the  limitation  ie  inconsistent  with  the  absolute  estate 


or  power  of  disposition.    4  KTent'sXTom.  270;  2  Redfield  on  Wills,  69; 
Welscli  ^.  Belleville  Savings  Bank,  94  111.   191 ;    Hamlin  v.  United 


Ch.  1)         FORFEITURE  OF  ESTATES  OF  INHERITANCE  G33 

States  Express  Co.,  107  111.  443 ;  Wolfer  v.  Hemmer,  144  111.  554,  33 
N.  E.  751. 

The  majority  of  the  court  in  the  case  of  Burton  v.  Gagnon,  180  111. 
345,  54  N.  E.  279,  did  not  agree  that  a  simple  devise  to  the  heirs  at 
law  of  the  testator,  who  were  his  two  children,  coupled  with  the  limi- 
tation over,  carried  with  it  a  power  of  alienation  free  from  the  lim- 
itation, as  stated  in  the  opinion  filed ;  but  the  decision  is  authority  for 
the  doctrine  that  where  there  is  an  absolute  power  of  disposition  an 
attempted  executory  devise  is  void.  By  the  will  in  this  case  Phoebe 
W.  Price  had  an  absolute  power  of  disposition  of  the  estate  devised 
to  her,  by  will  or  otherwise,  as  she  might  choose,  freed  from  the  lim- 
itation over,  and  the  attempted  executory  devise  was  based  upon  the 
contingency  that  she  should  be  seised  of  the  estate  at  her  death  and 
should  not  have  disposed  of  the  same,  by  will  or  otherwise.  The 
attempted  executory  devise  was  therefore  void,  and  she  was  vested 
with  an  estate  in  fee  simple  in  the  lands,  subject  only  to  the  life  estate 
of  the  widow. 

In  the  case  of  Friedman  v.  Steiner,  107  111.  125,  there  was  a  devise 
of  the  rest  and  residue  of  the  estate  to  the  testator's  wife  and  unto  her 
heirs  and  assigns,  forever,  to  the  total  exclusion  of  any  and  all  person 
or  persons  whatsoever,  but  upon  the  condition  that,  if  she  should  die 
intestate  and  without  surviving  lawful  issue,  said  estate  should  be  con- 
verted into  money  by  the  executor  and  paid  as  directed  by  the  will.' 
The  court  recognized  the  rule  that  an  executory  devise  is  void  where 
there  is  an  absolute  power  of  disposition  given  by  the  will,  but  adjudged 
that  the  widow  had  not  only  a  determinable  fee,  but  was  clothed  with 
unlimited  power  of  alienation  in  fee  simple,  and  by  necessary  impli- 
cation from  the  language  of  the  will  had  a  power  other  than  that  in- 
cident to  the  ownership  of  a  base  or  determinable  fee.  The  court 
found  in  the  will  the  power  annexed  to  the  estate,  and,  of  course,  a 
power  of  sale  added  to  an  estate  does  not  increase  the  estate.  Ducker 
V.  Burnham,  146  111.  9,  34  N.  E.  558,  37  Am.  St.  Rep.  135 ;  Walker  v. 
Pritchard,  121  111.  221,  12  N.  E.  336.  In  determining  the  estate  of 
Mrs.  Steiner  the  court  held  that  one  who  is  merely  the  owner  of  a  base 
fee  can  convey  no  more  but  that  she  had  power  to  convey  in  fee  sim- 
ple, or  declining  to  exercise  the  power,  might  convey  the  determinable 
fee  which  she  held.  Her  power  to  convey  in  fee  simple  was  not  re- 
garded as  an  incident  of  her  ownership,  but  was  a  power  distinct  from 
the  right  of  property.^^ 

22  Hubbard  v.  Rawsou,  4  Gray  (Mass.)  242  (Devise  in  trust  for  Lucy  abso- 
lutely "if  said  T.ucy  should  make  auy  disposition  by  will  or  other  writing  of 
said  property,  which  she  is  at  liberty  to  do,  he  pay,  convey  and  deliver  over 
said  timst  property  to  such  person  or  persons  as  she  may  name ;  and  if 
she  does  not  make  any  such  disposition,  that  he  pay,  convey  and  deliver 
over  said  trust  fund,  or  what  may  remain  in  his  hands,  to  her  children,  to 
be  e(iually  divided  between  them,  meaning  hereby  that  he  shall  pay  and 
distribute  what  may  remain  of  said  fund  at  her  decease,  in  case  she  make 
no  will,  in  the  same  way  and  manner  the  same  would  have  been  distribut- 


C34  ILLEGAL   CONDITIONS  AND   RESTRAINTS  (Part  5 

In  Orr  v.  Yates,  209  III.  222,  70  N.  E.  731,  the  court  said  that  so  far 
as  the  opinion  in  the  Friedman  Case  announced  a  doctrine  different 
from  the  estabhshed  one  concerning  the  power  of  the  owner  of  a  deter- 
minable fee  to  make  a  conveyance  it  had  not  be^en  approved,  and  in 
the  case  then  being  considered  it  was  held  that  the  language,  "if  not 
disposed  of  by  Mary  Maria  Yates,"  could  not  be  construed  to  give  her 
an  unqualified  power  of  disposition  or  any  power  whatever,  and  that 

ed  had  she  died  intestate,  sole  and  unmarried,  to  her  children,  if  she  leave 
any,  and  if  not,  to  such  as  would  inherit  when  the  intestate  leaves  no  chil- 
dren." In  holding  the  gift  over  to  the  children  valid,  the  court,  by  Dewey, 
J.,  said:  "In  the  view  we  take  of  the  case,  this  part  of  the  devise  cannot 
be  treated  as  a  nullity.  The  cases,  cited  by  the  plaintitf,  of  Ide  v.  Ide,  5 
Mass.  504,  and  Newhall  v.  Wheeler,  7  Mass.  189,  are  not  parallel  cases,  and 
the  same  reasons  do  not  exist  here,  as  existed  in  those  cases,  for  holding 
the  conveyance  to  be  that  of  an  absolute  title.  *  *  *  The  result  to 
which  we  come  is,  that  Mrs.  Morris  had  only  an  equitable  fee  simple  con- 
tingent, liable  to  be  defeated  upon  her  dying  before  her  husband,  in  case  the 
estate  was  not  conveyed  by  her  order,  and  she  had  made  no  disposition  of 
the  property  by  will  or  other  writing;  that  it  was  competent  for  the  testa- 
tor to  make  the  devise  over ;  and  that,  the  estate  given  to  Mrs.  Morris  hav- 
ing terminated  by  her  death,  her  children  held  the  land  as  purchasers  by  force 
and  effect  of  the  will  of  Daniel  Rawson,  and  not  as  an  estate  acquired  by 
inheritance  from  their  mother.") 

Randolph  v.  Wright  and  Wife,  81  Va.  60S  (Devise  to  A.  absolutely  "should 
either  son  die  without  a  will  or  lawful  issue,  the  surviving  son  must  heir 
all  the  property  given  by  me  to  him."  The  court  in  holding  the  gift  over 
upon  the  death  of  one  son  without  issue  valid,  said  by  Lacy,  J.:  "Upon  the 
best  consideration  we  can  give  this  case  we  are  of  opinion  that,  while  it  is 
true  that  the  power  of  disposal  by  will  or  otherwise  is  incident  to  an  abso- 
lute fee  simple  estate,  and  therefore  adds  nothing  when  annexed,  which  was 
not  already  an  incident  inhering  in  that  degree  of  estate ;  yet  that  the 
power  of  absolute  disposal  by  will  is  not  an  incident  inhering  in  an  estate 
for  life  only,  nor  in  a  defeasible  fee,  nor  in  any  limited  estate;  and  that  ia 
this  case  if  the  power  of  disposition  had  not  been  granted  by  the  will  it 
would  not  have  been  an  incident  inhering  in  the  limited  estate  granted,  to 
wit,  a  defeasible  fee,  liable  to  be  defeated  and  determined  by  the  happen- 
ing of  a  contingency  of  the  failure  of  issue,  which  contingency  actually  tiap- 
pened,  and  determined  such  limited  estate;  and  that  the  power  of  disposing 
by  will  did  not  annex  an  incident  of  the  estate  already  granted,  and  there- 
fore to  be  held  to  be  nugatory,  but  did  annex  a  power  not  otherwise  grant- 
ed, and  not  otherwise  attached  to  the  estate  granted ;  a  power  of  appoint- 
ment by  will,  added  to  an  estate  devised  subject  to  an  express  limitation, 
whereby  such  estate  is  defeated  and.  determined  upon  the  contingency  of 
his  dying  without  issue.  Such  an  estate  can  be  held  to  be  an  absolute  es- 
tate in  fee  simple  only  by  disregarding  the  plain  words  of  the  will,  to  say 
nothing  of  that  regard  to  the  intention  of  the  testator,  to  be  gathered  from 
the  whole  will,  and  then  followed  as  the  polar  star  in  all  effort  to  construe 
the  wills  of  the  dead.  It  is  plain  in  this  case  that  the  intention  of  the 
testatrix  was,  and  the  plain  and  clear  effect  of  the  words  used  is,  to  be 
held  to  devise  to  her  son  Edward  an  estate  liable  to  be  defeated  and  de- 
termined upon  his  dying  without  issue.  That  contingency  happened.  The 
power  of  appointment  was  never  exercised.") 

See.  also,  Eaton  v.  Straw,  18  N.  H.  320. 

It  is  clear  that  where  there  is  a  gift  to  A.  for  life,  with  power  to  appoint 
IaXiL  >/  "^(tUJU.ji^  t>y  <i^6d  or  will  and  in  default  of  appointment  to  B.,  the  gift  over  to  B.  is 
n  valid.  In  so  holding  in  Welsh  v.  Woodbjinr,  144  Mass.  542,  11  N.  E.  762, 
l^lj-  tYU4^  fif'y       the  court,  by  Holmes,  J.,  sauTi 

"The  testator's  wile,  ISIary  .Tacks,  took  a  life  estate  coupled  with  a  power, 
and  the  limitation  to  his  sister,  Lydia  Hobbs,  was  valid.  Ayer  v.  Ayer,  128 
Mass.  575,  577;    Smith  v.  Snow,  123  Mass.  323;    Kuhn  v.  Webster,  12  Gray, 


Ch.  1)        FORFEITURE  OF  ESTATES  OF  INHERITANCE  635 

counsel  in  the  case  did  not  so  contend.  In  the  Friedman  Case,  and 
perhaps  other  cases,  an  executory  devise  depending  upon  intestacy  and 
the  faikire  of  issue  has  been  considered  vahd ;  but  there  has  been  no 
one  in  which  such  a  devise  has  been  sustained  if  there  was  an  absohite 
power  of  alienation  in  fee  simple  by  the  first  devisee  at  his  own  discre- 
tion and  as  owner  of  the  estate. 

The  decree  is  reversed,  and  the  cause  is  remanded  to  the  circuit 
court,  with  directions  to  overrule  the  exceptions  to  the  answer  of  the 
plaintiff  in  error,  Eliza  Green,  to  overrule  the  demurrer  to  her  cross- 
bill and  require  an  answer  thereto,  and  to  proceed  further  in  accordance 
with  the  views  expressed  in  this  opinion. 

Reversed  and  remanded,  with  directions.^' 

3.    The  PUffSPstion  which  has  been  made,  that  it  is  hard  to  distingnish  be- 
tween ^nlon^e5|]3Qr— l^f6~"^vith— absohrte  lyo^  absolute 
owag^Bp  (BradTy  v.  Westcott,  13  Ves.  445,  451),  is  met  T)^-  ITiese  cases,  ana 
by  the  testator's   clear  expression   of  his   intent  to   give   all   opiate  iur   lifer 
only:: — See,  also,  Kelley  v.  Meins,  135  Mass.  231,  234;    Anon.  3  Lieon.  71,  pi. 
it)8;    13  Ves.  453;    Reith  v.  Seymour,  4  Russ.  263;    Sugd.  Powers  (7th  Ed.) 
123-125.     And  the  technical  doctrine  of  Kelley  v.  AIeins_2S_avQided-  by  this    ^^If-   ^.  ^  t^i-i 
technical  distinctiotr: — For  thfe'ground  of  Kelley~vr'Meins~an(l  that  class  of      "^^^TZZ — E^ 
casesrw'helher  <iUhCt;rmng~gersonaI  or  real'estate,  iS'thal  the  limitation  over-     ' ■* ^  '^■'^<^^  '-^ I 
is  ah'~nTtgg^tjto_taBe'lnvay"one"of  tfae^iPcirient^^  to  say 
that,  it  the  owner^does  not  dispose  of  his  propertyin  ms  nre  or  "at  his  death, 
it   sligll   devolve"~otherwise^  than   as   the   Tnw~~ELas~T)i'uvided.     This^^^objeetion 
doe^^nol  apply  to  a  rem"ainder  after  a  life  estate,  ev^  when~the  life  estate 
is  couinea  wim  a  power.    ' ~  ■ 

"Tne  objecttntrto  the  uncertainty  of  what  will  be  the  subject  of  the  limita- 
tion over,  which  was  once  thought  to  be  a  further  ground  for  the  doctrine  of 
Kelley  v.  Meins,  as  applied  to  personal  property,  seems  to  be  discredited  by 
the  later  English  decisions  cited  in  that  case,  and  never  has  been  applied  to 
a  life  estate,  coupled  with  a  power.  Cases  supra;  Surman  v.  Surman,  5 
Madd.  123 ;  In  re  Thomson's  Estate,  13  Ch.  D.  144 ;  Burleigh  v.  Clough,  52  N. 
H.  267,  13  Am.  Rep.  23.  See  Ross  v.  Ross,  1  Jac.  &  W.  154,  158 ;  Cuthbert  v. 
Furrier,  Jac.  415,  417 ;    Green  v.  Harvey,  1  Hare.  428,  432." 

23  Accord:  Combs  v.  Combs,  67  Md.  11,  8  Atl.  757,  1  Am.  St.  Rep.  359; 
Armstrong  v.  Kent,  1  Zab.  (21  N.  J.  Law)  509. 

In  Hall  v.  Robinson,  3  Jones,  Eq.  (56  N.  C.)  348,  the  limitations  were  to  A. 
absolutely,  but  if  he  dies  "leaving  no  wUl  nor  issues"  then  over  to  B.  In 
holding  the  gift  over  valid  the  court,  by  Pearson,  J.,  said :  "The  only  dif- 
ference between  the  present  case  and  the  ordinary  cases  of  conditional  lim- 
itations and  executory  devises  and  bequests  is  that  here  the  future  con- 
tingent estate  is  made  to  depend,  not  only  upon  the  event  of  the  death  of 
the  taker  of  the  determinable  fee  under  age,  and  if  of  age  without  leaving 
issue,  but  upon  the  additional  event  of  his  dying  intestate,  so  as  to  make 
three  instead  of  one,  or  two,  contingencies;  but  there  is  no  inconsistency 
between  the  existence  of  this  contingent  estate  and  the  estate  of  the  first 
taker;  for,  in  order  to  make  an  absolute  inconsistency,  which  the  rule  re- 
quires, the  first  taker  must  have  the  absolute  estate,  or  a  general  power 
of  disposition,  so  as  to  leave  nothing  in  the  testatrix  capable  of  being  given 
over  to  a  third  person.  We  are  of  opinion  that  the  limitation  over  was 
valid." 


636  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  5 


CHAPTER  II 

FORFEITURE  ON  ALIENATION  OF  ESTATES  FOR  LIFE 
AND  FOR  YEARS 


LOCKYER  V.  SAVAGE. 

(Court  of  Exchequer,  1733.     2  Strange,  947.) 

The  plaintiffs  brought  a  bill  as  assignees  of  a  commission  of  bank- 
ruptcy against  Norris,  to  have  an  account  of  the  personal  estate  which 
the  bankrupt's  wife's  father^  died  possessed  of,  he  being  a  freeman  of 
London. 

The  defendants  insisted,  that  by  articles  between  the  bankrupt  and 
Freeman  and  his  jaughter,  previous  to  the  marriage,  she  Tiad^n  conT 
sideration  of  £4000  advanced  by  the  father  in  his  lifetime,  released  her 
right  to  any  further  demand  out  of  the  personal  estate;  and  that  the 
i4000  was  settled  to  the  use  of  the  bankrupt  for  life,  but  if  he  failed 
in  the  world,  the  trustees  were  not  to  pay  the  produce  to  him,  but 
apply  itto  the  separate  mamtenance  of  the  wife  and  children. 

tJpon  the  hearing  two  points  were  ruled :  iTTTiat  a  chiTd  of  full  age 
might,  for  the  consideration  of  a  present  advancement,  bar  herself  of 
the  customary  share.  And  that  it  was  stronger  in  the  case  of  a  child 
who  had  a  right,  than  in  the  case  of  an  intended  wife,  which  had  been 
allowed.  2  Vern.  665.  2.  That  the  provision  for  her  maintenance  in 
case  the  husband  failed,  was_gooB  against  creditors ;  it  no.t  being_j^ 
provision  otit  of  the  bankrupt's  estate,  but  the  settTemeji^  of  her  own 
fortune.  Abr.^qu.  CasT~5or^54.  And  though  it  was  objected,  that 
the  profits  were  forfeited  by  the  act  which  was  to  vest  the  separate 
right  in  the  wife,  viz.,  bankruptcy;  and  when  two  rights  concur, 
fortior  est  dispositio  legis  quam  hominis :  yet  the  court  compared  it 
to  the  case  of  a  lease,  where  the  lessee  is  restrained  from  assigning 
without  consent  of  the  lessor,  and  the  assignment  has  always  been 
held  to  be  void.  The  bill  was  dismissed  with  costs.  Strange  pro 
defendente. 


ROE  d.  HUNTER  v.  GALLIERS. 

(Court  of  King's  Bench,  17S7.     2  Term  R.  133.) 

In  this  ejectment  a  special  verdict  was  found  before  Gould,  J.,  at  the 
last  assizes  at  Hertford,  which  stated  that  John  Hunter  being  seised  in 
fee  of  the  premises  in  question,  demised  the  same  by  two  several  leases 
dated  24th  December,  1778,  to  Green,  who  for  some  time  before  had 
been  and  afterwards  continued  to  be  a  dealer  in  horses,  for  twenty-one 


Ch.  2)  FORFEJITURE   ON  ALIENATION  G37 

years  from  Michaelmas,  1778,  at  rack  rents  for  both  farms  of  £150  a 
year,  without  any  fine  or  other  consideration  than  the  yearly  rents ;  in 
each  of  which  leases  is  contained  the  following  proviso :  "that  if  the 
said  yearly  rents  thereby  reserved,  or  either  of  them,  or  any  part  there- 
of, shall  be  behind  or  unpaid  for  twenty  days  next  after  the  respective 
days  of  payment,  being  lawfully  demanded ;  or  if  the  saidj.  Green, 
his  executors,  or  administrators,  shall  assign  over  the  indenture  of  lease 
or  assign  of  let  tlie  premises  thereby  demiseHT^or  any  part  thereof,  to 
any  person  whatsoever  for  any  time  or  times  whatsoever,  without  the 
license  or  consent  of  the  said  J.  Hunter,  his  heirs,  and  assigns,  first  had 
or  obtained  in  writing  under  his  or  their  hands  for  that  purpose ;  or  if 
the  said  J.  Green,  his  executors,  or  administrators,  shall  commit  any 
act  of  bankruptcy  within  the  intent  anH^  meaning  of  any  Statutes  niaHe 
or  to  be  made  in  relation  to  bankrupts,  whereon  a  commission  shall 
issue,  and  he  or  they  shall  be  found  or  declared  to  be  a  bankrupt  or 
bankrupts;  or  if  he  or  they  shall  make  any  composition  with  his  or 
their  creditors  for  the  payment  of  his  or  their  debts,  though  a  commis- 
sion of  bankrupt  doth  not  issue,  or  if  he  or  they  shall  make  any  assign- 
ment of  his  or  their  eftects  in  trust  for  the  benefit  of  liis  or  thelFcredi- 
tors_[  thaFthen  and^TronTthenceforth  in  any  of  tKese  cases  it  shall  and 
may  be  lawful  to  and  for  the  said  J.  Hunter,  his  heirs,  and  assigns,  into 
the  said  demised  premises  to  j;e2ent.£r^ and  the  same  again  to  have,  re- 
possess, and  enjoy,  as  in  his  or  their  former  estate,  anything  therein 
contained  to  the  contrary  notwithstanding."  It  is  then  found  that  coun- 
terparts of  the  said  leases  were  executed.  That  the  two  farms  after 
such  demise  and  before  the  bankruptcy  of  Green  were  improved  by  the 
bankrupt  £30  per  annum.  It  then  stated  the  act  of  bankruptcy;  that 
a  commission  issued  thereon  on  3d  February,  1787;  that  Green  was 
duly  found  and  declared  a  bankrupt;  and  that  the  defendants  after- 
wards entered  into  the  premises,  and  were  possessed  as  assignees  under 
the  commission  and  the  usual  assignment;  upon  whom  the  said  John 
Hunter  afterwards  entered.    But  whether,  &c. 

AsHHURST,  J.  The  only  question  is,  whether  a  proviso  in  a  lease, 
that  if  the  lessee  commit  an  act  of  bankruptcy,  or,  in  other  words,  do 
any  oFthose  acts  upon  wliicE'a  commission  of  bankrupt  may  be  sued 
out,  the  landlord  shall  have  a  right  to  re-enter,  be  legal  or  not  ?  The 
general  principle  is  clear,  that  theTandlord,  having  the  jus  disponendi, 
may  annex  whatever  conditions  he  pleases  to  his  grant,  provided  they 
be  not  illegal  or  unreasonable.  Then  is  this  proviso  contraiy  to  any 
express  law ;  or  so  unreasonable  as  that  the  law  will  pronounce  it 
to  be  void  ?  That  it  is  not  against  any  positive  law  is  admitted ;  and  no 
case  has  decided  it  to  be  illegal.  In  the  case  of  Lord  Stanhope  against 
Skeggs,  the  court  were  divided  in  opinion  upon  the  question  which 
arose  there ;  therefore  that  is  no  authority  either  way :  but  considering 
what  the  ground  of  that  difference  was,  it  is  some  authority  in  support 
of  this  proviso ;   for  the  doubt  arose  upon  considering  whether  a  clause 


638  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  5 

of  restraint  could  operate  upon  executors  to  prevent  them  from  assign- 
ing land  which  was  expressly  leased  to  the  original  tenant  and  his 
executors,  eo  nomine,  when  that  was  the  only  means  by  which  they 
could  exercise  their  trust.  Now  that  doubt  does  not  occur  in  this  case, 
this  question  turning  on  a  different  point.  This  proviso  then  not  being 
against  any  express  authority  of  law,  it  remains  to  be  considered 
whether  it  be  void  or  unlawful  as  against  reason  or  public  policy ;  now 
it  does  not  appear  to  me  to  be  against  either.  First,  it  is  reasonable 
that  a  landlord  should  exercise  his  judgment  with  respect  to  the  person 
to  whom  he  trusts  thejnanagement  of  his  estate ;  a  covenant  therefore 
not  to  assign  is  legal ;  covenants  to  that  effect  are  frequently  inserted 
in  leases;  ejectments  are  every  day  brought  on  a  breach  of  such  cove- 
nants. The  landlord  may  very  well  provide  that  the  tenant  shall  not 
make  him  liable  to  any  risk  by  a  voluntary  assignment,  or  by  any  act 
which  obliges  him  to  relinquish  the  possession.  If  it  be  reasonable  for 
him  to  restrain  the  tenant  from  assigning,  it  is  equally  reasonable  for 
him  to  guard  against  such  an  event  as  the  present,  because  the  conse- 
quence of  the  bankruptcy  is  an  assignment  of  the  property  into  other 
hands.  Perhaps  it  may  be  more  necessary  for  the  landlord  to  guard 
against  this  latter  event,  as  there  is  greater  danger  to  be  apprehended 
by  htm  in  this  than  in  the  former  case.  Persons  who  are  put  into 
possession  under  a  commission  are  still  less  likely  to  take  proper  care 
of  the  land  than  a  private  assignee  of  the  first  tenant.  Neither  is  there 
any  reason  of  public  policy  to  be  urged  against  allowing  such  a  proviso. 
It  conduces  to  the  security  of  landlords,  which  can  never  be  urged  as  a 
ground  of  objection  on  that  head.  On  the  whole  therefore  I  am  of 
opinion  that  this  is  ajvalid^oviso  ;  and,  the  lease  having  been  forfeited 
by  the  tenant's  becoming  a  bankrupt,  the  lessor  of  the  plaintiff  is  en- 
titled to  recover. 

BuLLKR,  J.,  after  commending  the  conciseness  of  the  special  verdict, 
and  recommending  it  as  an  example  in  future,  said,  the  question  lies 
in  a  very  narrow  compass ;  whether  a  proviso  in  a  lease  for  twenty-one 
years,  that  it  shall  be  void  if  the  lessee  become  a  bankrupt,  be  good  in 
law?  The  defendant's  counsel  has  commented  much  upon  the  different 
parts  of  this  proviso.  I  cannot  say  whether  any  part  of  it  may  or  may 
not  be  objectionable  with  reference  to  the  Statutes  concerning  bank- 
rupts ;  we  are  now  to  decide  upon  the  construction  of  a  proviso  at 
common  law,  and  not  on  any  Statute.  There  is  a  great  difference 
between  them :  Lord  Chief  Justice  Wilmot  took  the  distinction  in  a 
case  before  him  in  the  Common  Pleas,  in  which  his  Lordship  said, 
where  the  question  depends  on  a  Statute,  that  mows  down  all  before  it, 
and  it  acts  like  a  powerful  tyrant  that  knows  no  bounds :  but  the 
common  law  operates  with  a  more  lenient  hand ;  it  roots  out  that  which 
is  bad,  and  leaves  that  which  is  good.  The  question  here  is,  whether 
this  proviso  be  good  according  to  the  principles  of  the  common  law  as 
to  that  part  of  it  on  which  this  question  arises,  namely,  the  act  of  bank- 


Ch.  2)  FORFEITURE   ON   ALIENATION  639 

ruptcy,  which  is  the  only  point  necessary  to  be  considered.  The  cases 
cited  by  the  defendant's  counsel  have  not  the  least  analogy  to  the 
present  question.  That  which  was  cited  from  Equity  Cases  Abridged 
proves  nothing  to  this  purpose.  It  was  there  taken  for  granted  that  a 
clause  to  prevent  alienation  by  the  tenant  was  good ;  but  the  court  con- 
sidered that  the  particular  alienation  in  question  was  not  within  the 
terms  of  the  covenant,  because  the  covenant  only  extended  to  the  act 
of  the  party,  and  that  was  an  alienation  in  law,  for  the  assignment  was 
by  virtue  of  a  Statute.  This  case  has  also  been  argued  on  general  prin- 
ciples of  inconvenience,  because  the  possession  of  an  estate  on  such 
terms  enables  tenants  to  hold  out  false  colors  to  the  world.  But  that 
sort  of  observation  does  not  apply  to  the  case  of  land ;  for  a  creditor 
would  not  rely  on  the  bare  possession  of  the  land  by  the  occupier, 
unless  he  knew  what  interest  he  had  in  it.  If  he  were  desirous  of 
knowing  that,  he  must  look  into  the  lease  itself  ;  and  there  he  would 
find  the  proviso  that  the  tenant's  interest  would  be  forfeited  in  case  of 
his  bankruptcy.  The  stock  upon  a  farm  may  indeed  induce  a  credit ; 
but  that  will  not  govern  the  present  case.  It  is  next  urged  that  this  is 
equivalent  to  a  proviso  that  the  lease  shall  not  be  seized  under  a  com- 
mission of  bankrupt ;  the  defendant's  counsel  having  first  supposed  the 
lease  to  be  granted  absolutely  for  a  certain  term,  and  then  that  a  subse- 
quent proviso  is  added  to  that  effect.  Such  a  proviso  as  that  indeed 
would  be  bad,  because  it  would  be  repugnant  to  the  grant  itself :  but 
here  there  is  an  express  limitation  that  the  lease  shall  be  void  upon  the 
fact  of  tlie  lessee's  becoming  a  bankrupt.  It  is  clear  that  the  landlord 
in  this  case  parted  with  the  term  on  account  of  his  personal  confidence 
in  his  tenant ;  that  is  manifestly  the  case  in  all  leases  where  clauses 
against  alienation  are  inserted.  The  landlord  perhaps  relies  on  the 
tenant's  honesty;  or  he  approves  of  his  skill  in  farming,  and  thinks  he 
will  take  more  care  of  the  farm  than  another;  and  therefore  he  has  a 
right  to  guard  against  the  event  of  the  estate's  falling  into  the  hands  of 
any  other  person,  who  may  not  manage  it  so  well  as  the  original  tenant. 
Suppose  a  lease  were  made  for  twenty-one  years,  on  condition  that  the 
tenant  shall  so  long  continue  to  occupy  the  land  personally ;  there  could 
be  no  objection  made  to  such  a  condition,  for  the  personal  confidence  is 
the  very  motive  of  granting  the  lease ;  and  that  is  like  the  present  case. 
Lord  Stanhope's  Case  does  not  apply  at  all  to  this.  In  the  first  place, 
the  court  were  equally  divided,  and  therefore  the  case  is  of  no  author- 
ity. In  mentioning  this,  I  do  not  mean  to  say,  or  even  to  insinuate,  that 
tlie  opinion  which  I  then  held  was  right.  But  there  is  a  great  difference 
between  the  two  cases :  for  there  the  lease  was  granted  to  the  tenant, 
his  executors,  and  administrators :  they  were  to  take  as  such,  which 
gave  rise  to  the  doubt  in  that  case ;  and  Lord  Mansfield  there  said,  the 
difficulty  is,  that,  as  by  the  terms  of  the  lease  the  executors  were  to 
take,  the  subsequent  proviso  that  they  should  not  assign  seems  to  be 
repugnant  to  the  grant  itself.     Again,  that  was  not  a  husbandry  lease 


G40  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  5 

for  twenty-one  years,  like  the  present,  but  for  forty-one  years ;  and 
there  may  be  great  reason  for  a  distinction  between  the  two  terms ;  for 
if  such  a  proviso  as  this  were  inserted  in  very  long  leases,  it  would  be 
tying  up  property  for  a  considerable  length  of  time,  and  would  be  open 
to  the  objection  of  creating  a  perpetuity.  But  the  principal  ground  is, 
that  this  is  a  stipulation  not  against  law,  not  repugnant  to  anything 
stated  in  the  former  part  of  the  lease,  but  merely  a  stipulation  against 
the  act  of  the  lessee  himself,  which  I  think  it  was  competent  for  the 
lessor  to  make. 

Grose,  J.  The  question  is,  whether  the  landlord  may  not  stipulate 
that  he  will  let  his  land  only  to  the  tenant,  or  to  such  assignee  of  tlie 
tenant  as  the  landlord  shall  approve  of.  I  know  of  no  Statute  or  case 
which  says  that  such  a  stipulation  is  bad.  The  defendant's  counsel  has 
called  to  his  assistance  the  21  St.  Jac.  1,  but  that  has  never  been  con- 
strued to  extend  to  lands,  it  only  relates  to  goods  and  chattels.  The 
argument  of  the  tenant's  obtaining  credit  by  holding  out  false  colors, 
does  not  apply  to  the  case  of  land,  but  merely  to  goods ;  for  a  man 
does  not  get  credit  merely  from  the  occupation  of  land,  but  from  the 
interest  which  he  has  in  it ;  in  order  to  know  which  it  is  necessar}^  that 
the  creditor  should  see  the  lease,  which,  when  produced,  would  show 
that  the  estate  would  be  defeated  upon  the  tenant's  becoming  a  bank- 
rupt. Therefore  the  argument  derived  from  the  credit  which  the  ten- 
ant is  likely  to  get  by  being  in  possession  of  the  land,  can  have  no 
weight  in  this  case.  As  to  the  inconvenience  which  it  has  been  contend- 
ed will  arise  from  establishing  the  validity  of  this  proviso,  it  rather 
bears  the  other  way ;  for  this  cannot  be  determined  to  be  illegal  on  any 
principle  which  would  not  equally  extend  to  leases  which  are  every  day 
granted  in  large  towns,  restraining  the  assignment  of  houses  to  persons 
exercising  obnoxious  trades ;  that  not  only  diminishes  the  value  of  the 
particular  house  so  assigned,  but  also  the  adjoining  houses,  belonging 
probably  to  the  same  landlord. 

Judgment  for  the  plaintiff. 


SHEE  V.  HALE. 

(Court  of  Chancery,  1807.     13  Ves.  404.) 

John  Mootham  by  his  will,  dated  in  March  1803,  gave  and  be- 
queathed all  the  residue  of  his'real  and  personal  estate  to  trustees,  upon 
trust,  to  pay  to  his  son  John  Mootham  the  yearly  sum  of  £200,  clear  of 
all  deductions,  during  the  term  of  his  natural  life,  or  until  such  time  as 
his  said  son  should  actually  sign  any  instrument,  whereby  OT  in  which 
he "  should~contract  or  agree  to  sell,  assign,  or  otherwise  paft~with,  the 
same  or  alTy^part  thereof,  of  any'way  charge  the  same,  or  any  part 
thereof,  as  a  secufifyTor  any  sum  or  sums  of  money,  to  be  advanced  or 
lent  to  him  by  any  person  or  persons  whomsoever,  or  in  any  other 


Ch.  2)  FORFEITURE   ON  ALIENATION  641 

manner  whatever  charge  or  dispose  of  such  annuity,  or  any  part  there- 
of, by  anticipation ;  or  whereby  or  in  which  he  should  authorize  or  em- 
power, or  intend  to  authorize  or  empower  any  person  or  persons  whom- 
soeveno  receive  such  annuity,  or  any  part  thereof,  except  only  as  to 
the  then  next  quarterly  payment,  after  such  authority  or  power  should 
be  given :  such  annuity  or  annual  sum  to  be  paid  to  his  said  son  John 
Alootham  by  four  equal  quarterly  payments ;  and  he  declared  his  will 
to  be,  that  in  case  his  said  son  should  at  any  time  sign  or  execute  any 
such  instrument  or  writ^g  for  tTie  purposes  or  any  of  the  purposes 
aforesaid,  (except  as  aforesaid,)  then  and  from  thenceforth  the  same, 
and  every  part  thereof,  should  cease  to  be  paid  or  payable  to  him ;  and 
should  sink  jnto  the_general_residue  ofjiis  jpersonaI_estate. 

By  a  codicil,  dated  the  27th  of  December,  1803,  the  testator  be- 
queathed the  residue  of  his  estate  and  effects  to  the  same  trustees,  upon 
trust  to  pay  the  interest  and  produce  thereof  unto  his  wife  Elizabeth,i 
during  her  life ;  and  after  her  decease  directed  them  to  transfer  such 
residuary  personal  estate  to  other  persons. 

The  testator  died  on  the  6th  of  July,  1804.  John  Mootham,  the  son, 
being  in  confinement  for  debt,  took^the  benefit  of  an  Insolvent  Act, 
passed  on  the  30th  of  July,  1804;  and  the  annuity  ori200  undeFtHe 
will  of  his  father  was  inserted  in  the  scheduTe~oT  his  property  delivered 
in,  and  signedby  him. 
*Trhe~5iTrwas  filed  by  the  assignees  under  the  Insolvent  Act,  claiming 
the  annuity.  The  answers  raised  the  question,  whether  the  annuity  was 
forfeited  and  sunk  into  the  residue. 

The  Master  of  the  Rolls  [Sir  William  Grant].  The  intention 
of  the  testator,  to  make  this  annuity  personal  to  his  son,  cannot  be 
doubted.  The  question  is,  whether  that  intention  is  sufficiently  express- 
ed. He  has  gone  awkwardly  about  it,  by  expressing  particular  acts. 
His  son  was  not  to  have  this  as  a  fund  of  credit.  The  testator  sup- 
posed he  had  sufficiently  guarded  against  that.  It  appears  to  me,  that 
the  son  has  done  an  act  within  this  will,  to  authorize  or  empower  qth- 
ers  to  receive  this  arinuTty!  This^iffers  from  the  case  of  the  bankrupt.^ 
The  bankrupt  had  not^one  anything.  The  insolvent  debtor  was  not  in 
a  situation  to  be  compelled  to  part  with  this  annuity.  He  might  have 
enjoyed  it  for  his  life.  The  signing  of  the  petition  and  schedule  appear 
to  me  to  be  clear  acts.    As  to  the  intention  there  can  be  no  doubt. 

1  See,  also,  Dommett  v.  Bedford,  6  T.  R.  684  (1796),  where  the  annuity 
ceased  upon  the  bankruptcy  and  attempted  transfer  by  the  annuitant. 
4  Kales  Prop. — 41 


642  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  5 

ROCHFORD  V.  HACKMAN. 

(Court  of  Chancery,  1852.     9  Hare,  475.) 

A  claim,  filed  by  William  James  Rochford  and  Martha  Ann  his  wife, 
against  Hackman  and  another,  the  personal  representatives  of  William 
Rochford,  the  testator  in  the  cause, — English  the  assignee  under  the 
insolvency  of  Richard  Rochford  the  elder,  the  son  of  the  testator,  and 
Richard  Rochford  the  younger,  the  son  of  Richard  Rochford  the  elder, 
for  the  purpose  of  having  the  trusts  of  the  will  of  the  testator,  so  far 
as  respected  the  sum  of  il900  Consols,  executed  under  the  direction 
of  the  court,  and  to  have  one  moiety  of  that  sum  transferred  to  the 
plaintiffs,  and  the  other  moiety  secured  in  court  for  the  benefit  of  the 
parties  interested  therein.  The  plaintiff  Martha  Ann  Rochford  was 
one  of  the  children  of  Richard  Rochford  the  elder,  the  insolvent,  and 
had  attained  twenty-one.  The  defendant  Richard  Rochford  the  young- 
er was  his  only  other  child,  and  was  still  an  infant. 

William  Rochford  the  testator,  by  his  will,  dated  the  15th  of  August, 
1822,  gave  and  bequeathed  the  residue  of  his  personal  estate  to  Samuel 
Groves  and  Thomas  Hackman,  upon  trust,  to  permit  and  suffer  or  au- 
thorize and  empower  his  wife  to  receive  the  income  for  her  life,  and 
after  her  decease,  as  to  one  fourth  part  of  the  residue,  upon  trust,  to 
pay  to,  or  permit  and  suffer,  or  authorize  and  empower,  his  son  Richard 
Rochford  (the  insolvent)  to  receive  the  income  for  his  life,  and  after  his 
decease  to  transfer  and  pay  the  same  to  the  child,  if  only  one,  and  if 
more  than  one,  unto,  between,  or  amongst  the  children  of  his  son 
Richard,  share  and  share  alike,  to  be  vested  interests  in  such  child  or 
children,  as  and  when  he,  she,  or  they  respectively  should  attain 
twenty-one,  with  survivorship  as  to  the  shares  of  children  dying  under 
twenty-one,  and  with  a  direction  that  the  income  of  the  shares  of  the 
children,  or  so  much  thereof  as  the  trustees  should  think  fit,  should  be 
applied  for  their  maintenance  during  their  minorities ;  and  as  to  the 
other  three  fourths  of  the  residue,  after  the  death  of  the  wife,  the  tes- 
tator declared  similar  trusts, — as  to  one  fourth,  in  favor  of  his  son 
James  and  his  children;  as  to  another  fourth,  in  favor  of  his  son 
William  and  his  children ;  and  as  to  the  remaining  fourth,  in  favor  of 
his  son  John  and  his  children.  And  he  then  provided,  that,  in  case 
any  or  either  of  his  said  four  sons  should  die  without  leaving  any  child 
or  children  him  or  them  surviving,  or,  being  such,  in  case  all  of  them 
should  happen  to  die  under  the  age  of  twenty-one,  that  the  part  or 
share,  parts  or  shares,  intended  for  such  of  his  said  son  or  sons  so 
dying  as  aforesaid,  and  his  or  their  respective  issue  as  aforesaid,  should 
be  divided  into  as  many  shares  as  should  be  equal  to  the  number  of  his 
son  or  sons  who  should  be  then  living,  or,  being  then  dead,  should 
have  left  a  child  or  children  living  at  his  or  their  death  or  respective 
deaths ;   and  thereupon,  such  shares  should  be  and  remain  upon  such 


Ch.  2)  FORFEITURE   ON  ALIENATION  643 

trusts  for  his  said  surviving  other  sons  and  their  children  respectively 
as  were  thereinbefore  declared  with  respect  to  the  original  shares.  And 
the  will  contained  the  following  clause :  "And  my  further  will  is,  and 
I  do  hereby  expressly  declare  and  direct,  that  in  case  my  said  wife,  or 
any  of  my  said  four  sons,  shall  in  any  manner  sell,  assign,  transfer, 
encumber,  or  otherwise  dispose  of  or  anticipate  all  or  any  part  of  her, 
his,  or  their  share  and  interest  of  and  in  the  said  dividends,  interest, 
and  annual  proceeds  aforesaid,  then  and  in  such  case,  and  from  and 
immediately  after  such  alienation,  sale,  assignment,  transfer,  or  dispo- 
sition shall  be  made,  the  said  several  bequests  so  hereinbefore  made  to 
or  in  trust  for  him  and  them  as  aforesaid  shall  cease,  determine,  and  be- 
come utterly  void  to  all  intents  and  purposes,  as  if  the  same  had  not 
been  mentioned  in  or  made  part  of  this  my  will,  and  as  if  my  said  wife 
or  either  of  my  said  sons  were  dead." 

The  testator  died  in  September,  1831 ;  and  his  wife  in  October  fol- 
lowing. Two  of  the  sons,  William  and  John,  subsequently  died  with- 
out leaving  any  issue. 

The  residue  of  the  testator's  estate  was  invested  in  the  purchase  of 
£3800  Consols,  and  the  moiety  of  that  sum  (which  was  the  subject  of 
the  claim),  in  the  events  that  had  happened,  stood  limited  by  the  will 
to  Richard  Rochford,  the  insolvent,  and  his  children.  Richard  Roch- 
ford,  the  insolvent,  received  the  dividends  of  this  moiety  up  to  the 
10th  of  October,  1850;  but,  on  the  14th  of  December,  1849,  being 
then  a  prisoner  in  actual  custody  for  debt  in  the  debtors'  prison  for 
London  and  Middlesex,  he  presented  his  petition  to  the  Court  for  Re- 
lief of  Insolvent  Debtors  for  his  discharge  from  such  custody,  accord- 
ing to  the  provisions  of  the  Act  1st  &  2d  Vict.  c.  110.  By  an  order 
of  that  court,  dated  the  17th  day  of  December,  1849,  his  estate  and 
effects  were  vested  in  the  provisional  assignee,  and  by  a  subsequent 
order  of  the  same  court  the  defendant  English  was  appointed  to  be 
the  assignee  under  the  insolvency.  It  was  admitted  at  the  bar,  that 
in  the  schedule  filed  by  Richard  Rochford  in  the  Insolvent  Court, 
especial  reference  was  made  to  his  life  interest  in  a  moiety  of  the 
residue  under  the  testator's  will,  and  to  the  provisions  of  the  will  with 
reference  to  the  assignment  of  that  interest. 

Thu  Vice-Chance;llor  [Sir  George;  James  Turner].  In  the 
circumstances  of  this  case  it  is  contended  by  the  plaintiffs,  and  the 
defendant  Richard  Rochford  the  younger,  that  the  insolvent's  life 
interest  in  the  il900  Bank  Three  per  Cent.  Annuities  has  ceased,  and 
that  they  have  become  presently  entitled  to  that  fund  in  equal  shares : 
as  to  the  share  of  the  plaintiff's  absolutely,  and  as  to  the  share  of  the 
defendant  Richard  Rochford  the  younger,  contingently  on  his  attaining 
twenty-one ;  but  the  defendant  English,  on  the  other  hand,  insists  that 
he  is  entided  to  the  income  of  the  £1900  Consols  during  the  remainder 
of  the  life  of  Richard  Rochford  the  insolvent. 

In  determining  this  question,  the  first  point  for  consideration  ap- 


644  ILLEGAL  CONDITIONS   AND   RESTRAINTS  (Part  5 

pears  to  me  to  be,  whether  there  are  any  fixed  rules  by  which  the 
court  can  be  guided  in  its  determination;  and  upon  examining  the 
cases  upon  the  subject,  I  think  it  will  be  found  that  there  are  two  such 
rules:  First,  tliat  property  cannot  be_g:iA^en^lor  ijfe  any  more  than 
;|hgn1ntp1y^jw|thr)iit  the  power  of  alienation  being  incident  to  the  gift; 
anUThat  any  mere  attempt  to  restrict  the  power  of  alienation,  wheth- 
er applied  to  an  absolute  interest  or  to  a  life  estate,  is  void,  as  being 
inconsistent  with  the  interest  given ;  and  secondly,  that  although  a  l[f e 
interest  may  be  expressed  to  be  given,  it  may  be  well  determijied  by^  an 
apt  hmitatjon  over. 

That  property  cannot  be  given  for  life  any  more  than  absolutely, 
without  t^e  power  "of  alienation  being~TncKlent  to  the'gitt;'~appears  to 
me  to  be  well  settled  by  the  cases  of  Brandon  v.  Robmsbn,  18  Ves. 
429;  and  Graves  v.  Dolphin,  1  Sim.  66.  In  both  those  cases  there 
were  gifts  for  life,  with  provisions  which  were  directed  against  aliena- 
tion, but  in  neither  of  them  was  there  any  proviso  for  determining  the 
life  interest,  or  any  gift  over  in  the  event  of  alienation ;  and  the  court 
in  each  of  those  cases  held  that  the  life  interest  continued ;  and  these 
cases  are  not,  so  far  as  I  am  aware,  contravened  by  any  other  au- 
thority. 

That,  in  cases  Avhere  a  life  interest  is  ^expressed  to  be  given,  it 
may  be  well  determined  by  an  aptlimitation  over,  is,  I  think,  "equaTly 
well  settled  by  many  authorities^,  Wilkmson  v.  Wilkinson,  3  Swanst. 
515TXo^irvrWyattr3'Maddr482;  Yarnold  v.  Moorhouse,  1  Russ. 
&  My.  364;  Kearsley  v.  Woodcock,  3  Hare,  185;  IMartin  v.  Marg- 
ham,  14  Sim.  230;  Brandon  v.  Aston,  2  Y.  &  C.  C.  C.  24;  and  Church- 
ill V.  Marks,  1  Coll.  441. 

It  was  insisted,  however,  at  the  bar,  that  a  further  rule  was  to 
be  deduced  from  the  cases,  namely,  that  a  limitation  over  was  in  all 
cases  essential  to  the  determination  of  the  life  interest ;  and  the  case 
of  Dickson's  Trust,  1  Sim.  N.  S.  ^1 ,  was  relied  on  for  that  purpose. 
For  the  reasons  wliich  I  shall  presently  give,  I  do  not  think  it  nec- 
essary now  to  decide  that  point;  but  it  may  be  well  to  observe  upon 
it,  that  I  do  not  understand  the  case  of  Dickson's  Trust  to  have  de- 
cided that  the  life  interest  would  not  be  well  determined  by  a  proviso 
for  cesser,  though  not  accompanied  by  a  limitation  over;  and  that 
I  do  not  think  that  any  such  rule  is  to  be  collected  from  the  cases.  The 
true  rule  I  take  to  be  this :  The  court  is  to  collect  the  intention  of  the 
testator,  whether  his  intention  was  that  the  life  interest  should  not 
continue ;  and  it  is  to  collect  that  intention  from  the  whole  will,  look- 
ing to  the  primary  disposition,  for  the  purpose  of  seeing  to  what  ex- 
tent the  interest  is  given,  and  to  the  ulterior  disposition,  for  the  pur- 
pose of  seeing  to  what  extent  and  in  what  events  the  primary  disposi- 
tion is  defeated.  If,  on  the  one  hand,  the  court,  upon  this  examina- 
tion, finds  that  there  is  a  limitation  over,  and  that  it  meets  the  event 
which  has  occurred,  it  is  plain  that  the  testator  did  not  intend  tlie  life 


Ch.  2)  FORFEITURE   ON  ALIENATION  645 

interest  to  continue  in  that  event,  and  it  ceases  accordingly,  as  in  the 
cases  to  which  I  have  referred ;  but,  if ,  on  the  other  hand,  the  court, 
upon  the  examination,  finds  that  the  limitation  over  does  not  meet 
the  event  which  has  occurred,  there  is  no  evidence  of  the  testator's 
intention  that  the  life  interest  should  not  continue  in  that  event,  and 
it  therefore  continues,  as  in  Lear  v.  Leggett,  1  Russ.  &  ISly.  690,  and 
Pym  V.  Lockyer,  12  Sim.  394.  This  view  of  the  cases  appears  to  me 
to  remove  all  difficulty  upon  tliem,  and  it  falls  in  with  the  case  of 
Dommett  v.  Bedford,  6  T.  R.  684,  in  which  the  life  interest  was  held 
to  cease  upon  the  proviso  for  cesser  without  any  gift  over.  I  think, 
indeed,  it  would  be  difficult  to  hold  that  any  greater  effect  can  be  due 
to  the  limitation  over  than  to  the  express  declaration  of  the  testator 
that  the  life  interest  should  cease. 

Some  observations  which  fell  from  Lord  Eldon  upon  this  question 
in  the  leading  case  of  Brandon  v.  Robinson,  18  Ves.  429,  appear  to 
me  to  have  been  to  some  extent  misapprehended,  and  I  will  venture 
therefore  to  make  some  few  observations  upon  that  case.  Lord  Eldon, 
in  that  judgment,  first  observes,  that  a  disposition  to  a  man  until  he 
shall  become  bankrupt,  and  after  his  bankruptcy  over,  is  quite  different 
from  an  attempt  to  give  to  him  for  his  life,  with  a  proviso  that  he  shall 
not  sell  or  alien  (Id.  432,  433) ;  and  the  distinction  between  the  two 
cases  is  obvious.  In  the  former  case  the  disposition  could  not  possibly 
endure  beyond  the  bankruptcy.  In  the  latter,  it  would,  if  the  law  did 
not  allow  the  proviso,  or  if  the  proviso  was  not  couched  in  terms 
calculated,  in  the  events  which  happened,  to  defeat  the  life  interest; 
but  I  do  not  understand  Lord  Eldon  to  say,  that  the  law  does  not  al- 
low the  proviso.  On  the  contrar}',  he  expressly  says,  that  if  the  pro- 
viso be  so  expressed  as  to  amount  to  a  limitation  reducing  the  inter- 
est short  of  a  life  estate,  neither  the  man  nor  his  assigns  can  have  it 
beyond  the  period  limited;  and  we  have  here,  therefore,  his  distinct 
opinion  that  upon  a  proviso  so  expressed  the  life  interest  would  cease, 
lie  then  passes  to  the  case  of  Foley  v.  Burnell,  1  Bro.  C.  C.  274,  and 
to  the  old  form  of  trusts  for  the  separate  use  of  married  women,  for 
the  purpose  of  showing  that  the  power  of  disposition  accompanied  the 
interest  unless  an  available  restriction  was  imposed ;  and  he  then  pro- 
ceeds to  the  particular  case  which  he  had  under  his  consideration,  and, 
having  first  shown  that  the  life  interest  was  the  propert}'  of  the  bank- 
rupt, goes  on  to  inquire  whether  there  was  enough  in  the  will  to  show 
that  it  could  not  be  assigned  under  the  Commission  of  Bankruptcy; 
on  which  he  observes,  that,  "to  prevent  that,  it  must  be  given  to  some 
one  else,"  meaning,  as  I  understand  the  judgment,  not  that  in  all  cases 
there  must  be  a  gift  over  to  prevent  the  assignees  from  taking;  but 
that,  under  the  provisos  of  that  particular  will  the  assignees  must 
take  in  the  absence  of  such  a  gift  over;  as  was  clearly  the  case,  ac- 
cording to  the  tenor  of  the  previous  part  of  his  judgment,  there  be- 
ing no  proviso  determining  the  life  interest;    and  that  this  was  Lord 


646  ILLEGAL   CONDITIONS  AND   RESTRAINTS  (Part  5 

Eldon's  meaning  is,  I  think,  apparent,  both  from  what  precedes  and 
what  follows  upon  the  passage  in  question;  for  in  what  precedes  he 
refers  to  the  provisions  of  the  whole  will,  and  in  what  follows  he  ad- 
verts to  the  question  whether  the  restrictions  contained  in  the  will  could 
be  construed  into  a  limitation  giving  the  interest  to  the  residuary  lega- 
tee. Lord  Eldon's  judgment  in  Brandon  v.  Robinson  does  not,  there- 
fore, appear  to  me  to  go  to  the  extent  of  deciding  that  in  all  cases  there 
must  be  a  gift  over  in  order  to  determine  the  life  interest. 

In  the  present  case,  however,  I  do  not,  as  I  have  already  observed, 
think  it  necessary  to  determine  that  question.  I  am  of  opinion  that 
the  testator  in  this  case  has  not  merely  provided  for  the  cesser  of  the 
life  interest,  but  has  made  a  valid  gift  over;  and  I  think  so  for  this 
reason:  According  to  the  general  rule,  some  effect  must,  if  possible, 
be  given  to  all  the  words  of  a  will ;  and  I  see  no  effect  which  can  be 
given  to  the  words  which  follow  on  the  cesser  of  the  life  interest,  unless 
they  be  construed  to  operate  the  limitation  over,  for  the  cesser  or  de- 
termination of  the  life  estate  was  effected  by  the  previous  provisions. 

Some  observation  was  made  in  the  course  of  the  argument  upon  the 
terms  in  which  this  limitation  over  is  expressed,  "as  if  the  same  had 
not  been  mentioned  in  or  made  part  of  this  my  will,  or  as  if  my  said 
wife,  or  either  of  my  said  sons  were  dead ;"  but  on  looking  at  the 
previous  provisions  of  the  will,  I  think  there  is  no  difficulty  in  under- 
standing what  the  testator  here  intended.  In  the  event  of  any  of  the 
sons  dying  without  leaving  children,  he  had  given  over  their  fourths  to 
the  other  sons  and  their  children ;  and  what  I  take  him  to  have  meant 
by  this  clause  is,  that  the  words  "as  if  the  same  had  not  been  mentioned 
in  the  will"  should  apply  to  the  event  of  there  being  no  children,  and 
the  words  "as  if  they  were  dead"  to  the  event  of  there  being  chil- 
dren. I  am  also  of  opinion  that  the  event  has  occurred  on  which  this 
limitation  over  was  to  take  effect.  I  think  the  case  in  that  respect  is 
completely  governed  by  Shee  v.  Hale,  13  Ves.  404;  Martin  v.  Marg- 
ham,  14  Sim.  230;  Brandon  v.  Aston,  2  Y.  &  C.  C.  C.  24;  and  Church- 
ill v.  Marks,  1  Coll.  441 ;  and  is  not  affected  by  Lear  v.  Leggett,  1 
Russ.  &  My.  690,  and  Pym  v.  Lockyer,  12  Sim.  394;  the  alienation 
in  the  two  latter  cases  being  compulsory,  and  in  the  former  voluntary. 

A  learned  text  writer  has,  I  observe,  expressed  some  doubt  upon 
the  soundness  of  this  distinction  between  compulsory  and  voluntary 
alienations;  but  I  see  no  reason  for  the  doubt.  It  cannot,  I  think,  be 
said  that  a  man  has  alienated  when  the  alienation  is  made  by  the  act 
of  the  law  and  not  by  his  own^actj.  and-  if  he  has  not  alienated,  there 
is  no  breach  of  the  condition,  and  the  life  estate  is  not  determined. 
The  conch.isiOTI7therefore7at  which  I  have  arrived  in  this  case  is,  that 
the  life  interest  of  the  insolvent  is  determined ;  and  the  remaining 
questions  then  are,  whether  the  capital  ought  now  to  be  divided,  and 
how  the  income  of  it  from  the  date  of  the  insolvency  is  to  be  dealt 
with. 


Ch.  2)  FORFEITURE   ON   ALIENATION  647 

1  think  that  the  capital  cannot  now  be  divided ;  for  I  think  that  the 
determination  of  the  Hfe  interest  does  not  aUer  the  class  who  are 
to  take  the  capital,  and  that  any  after-born  child  of  the  insolvent  at- 
taining twenty-one  will  be  entitled  to  share  in  it.  The  object  of  the 
proviso  is  to  determine  the  life  interest  as  to  the  beneficial  enjoyment 
of  the  insolvent ;  and  to  hold  it  to  be  determined  so  as  to  alter  the 
rights  of  his  children  would  be  to  carry  it  beyond  its  object.  The  re- 
sult, I  think,  is,  that  the  plaintiff  Mrs.  Rochford  has  a  vested  interest 
in  a  moiety  of  the  il900  Consols,  and  the  defendant  Richard  Rochford 
has  a  contingent  interest  in  the  other  moiety ;  but  that  both  these  in- 
terests would  open,  so  as  to  let  in  any  after-born  children  of  the  in- 
solvent: and  this  being  the  result,  I  think  that  Mrs.  Rochford  is  en- 
titled to  receive  the  interest  of  her  moiety.  The  case,  in  this  respect, 
seems  to  me  to  stand  upon  the  same  footing  as  the  case  of  a  vested  in- 
terest liable  to  be  divested,  and  in  that  case  the  party  entitled  to  the 
vested  interest  is,  as  I  apprehend,  entitled  to  the  income.  The  income 
of  the  other  moiety  must,  I  think,  be  accumulated. - 

2  See  Hurst  v.  Hurst.  21  Ch.  Div.  278  (1882). 

For  cases  where  the  settlor  settles  his  own  property  upon  himself  for  life, 
with  a  provision  of  forfeiture  in  alienation,  see  Higinbotham  v.  Holme,  19 
Ves.  88  (1812) :  Lester  v.  Garland,  5  Sim.  205  (1832) ;  Synge  v.  Synge.  4  Ir.  Ch. 
337  (18.5.5) ;  In  re  Pearson,  3  Ch.  Div.  807  (1876) ;  In  re  Holland,  [1901]  2  Ch. 
145,  [1902]  2  Ch.  360 ;  Phipps  v.  Ennismore.  4  Russ.  131  (1829) ;  Brook  v.  Pear- 
son, 27  Beav.  181  (1859) ;  Knight  v.  Browne.  30  L.  J.  Ch.  N.  S.  &49  (1861),  4 
L.  T.  R.  N.  S.  206 ;    In  re  Detwold,  40  Ch.  Div.  585  (1889). 


64:8  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  5 


CHAPTER  III 

RESTRAINTS  ON  THE  ALIENATION  OF  ESTATES  OF 
INHERITANCE 


PIERCY  V.  ROBERTS. 

(Court  of  Chancery,  1S32.    1  Mylue  &  K.  4.) 

Thomas  Roberts,  by  his  will  dated  the  18th  of  January,  1829,  be- 
queathed to  his  executors  the  sum  of  i400  upon  trust,  to  pay,  apply, 
and  dispose  thereof,  and  of  the  interest  and  produce  thereof,  to  and 
for  the  sole  use  and  benefit  of  his  son,  Thomas  Jortin  Roberts,  in  such 
smaller  or  larger  portions,  at  such  time~ofTirnes^mmediaFe^or  remote, 
and  m  such  way  or  m'anher  as  they  the  said  executors,  or  the  survivor 
of  them,  or  the  executors  or  administrators  of  sucF  survivor, ^lould 
in  tEeir^jmlgment  and"  discretion  think  Best :"  and,  after  bequeathing  to 
his"  execLiLui  s  Ure  ' further "stmr  of '£400'Tipon  similar  trusts,  for  the 
benefit  of  his  son  John  Prowting  Roberts,  the  testator  proceeded  as 
follows :  "And,  in  case  of  the  deaths  of  either  or  both  of  my  said 
sons,  Thomas  Jortin  and  John  Prowting,  before  the  whole  of  the  said 
several  sums  of  £400  and  i400,  and  the  interest  thereof  respectively, 
shall  have  been  paid  or  applied  for  the  purposes  aforesaid,  then  I  will 
and  direct  that  the  unapplied  part  or  parts  thereof  respectively  shall 
sink  into  and  become  part  of  my  residuary  personal  estate,  and  go 
and  l5e  applied  therewith  as  hereinafter  mentioned :"  and  the  testa- 
tor thereby  appointed  his  wife,  Ann  Roberts,  his  residuary  legatee, 
and  the  said  Ann  Roberts  and  John  Jortin  executors  of  his  said 
will. 

The  testator  died  in  July  1829,  and  in  May  1830  the  testator's  son 
Thomas  Jortin  Roberts  took  the  benefit  ^fjthe_InsolvervLD-£btoxsl^ct. 
Previously  to  May  1830,  'fliomas~Jortin  Roberts  had  received  several 
sums  from  the  executors,  amounting  in  the  whole  to  £156;  and  since 
that  period,  and  before  the  filing  of  the  bill,  he  had  received  several 
othex-SiimSj  jimountiiTg_together  to  £112.  The  bill  was  filed  by  the  as- 
signee of  the  insolvent's  estate  agamit  the  executors  of  the  testator, 
to  recoyer_the^  legacy  of  £400  and  the  interest  thereof,  or  so  much 
thereof  as  remained  unpaid^^3ilg--iini'SJjT^^~^^scHarge  of  the  Tegatee 
under  the  Insolvent  Debtorsj^ct. 

The"~1Ta5TTvR  of  the:  R0LI.S  [Sir  John  Le;ach].  The  question 
is,  whether  this  legacy  passed  to  the  assignee  of  the  insolvent  upon  the 
insolvency  ot  the  le'gatee;  olPwliefher  it  may  remain  in  the  hands  of 
the  executors,  to  be  applied,  atTEerr  3iscrefIon7  for  the_benefit"Df  the 


Ch.  3)  RESTRAINTS   ON  ALIENATION  649 

legatee.  The  insolvent  being  the  only  person  substantially  entitled 
to  thtsHegacy,  the  attempf  to  continue  in  hijri^the  enjoyment~onT7  not- 
witHsfahding  his  insolvency,  is  in  fraud  of  the  law.  The  discretion  of 
the  executors  determined  by  the  insolvency,  and^the  propert}^  passed 
by  the  assignment. 

/^preliminary  objection  was  taken  to  this  suit  by  the  defendants,  on 
the  ground  that  it  had  been  instituted  without  the  consent  of  the  major 
part  in  value  of  the  creditors,  at  a  meeting  convened  by  advertisement 
for  that  purpose,  as  required  by  the  1  G.  4,  c.  119.  The  bill  alleged, 
that  the  plaintiff  had  been  duly  authorized  to  institute  the  suit  with 
such  consent,  but  this  allegation  was  not  proved ;  and  it  was  objected 
at  the  hearing,  by  the  defendants,  that  the  consent  of  the  creditors  not 
being  proved,  the  bill  must  be  dismissed. 

His  Honor  would  not  allow  the  suit  to  be  stopped  by  this  objection, 
but  directed  the  point  to  be  argued  on  a  future  day. 

On  this  day  (Nov.  12)  the  point  was  accordingly  argued  by  Mr. 
Bickersteth,  for  the  plaintiff,  and  by  Mr.  Pemberton,  for  the  defend- 
ants. 

The  Master  of  the  Rolls  said  he  had  a  strong  recollection  of 
having  been  spoken  to  by  Chief  Baron  Alexander  on  this  point.  His 
opinion  was  very  much  in  favor  jiL  the  plaintiff.  By  the  clause  in 
qiiFstibn  the  legislature  plainly  intended  to  benefit  the  creditor ;  not  to 
give  an  advantage  to  the  debtor.  H  the  suit  were  successful,  the  cred- 
itors would  take  the  be^nefit;  if  it  were  unsuccessful  through  the  fault 
of  the  assignee,  they  would  have  their  remedy  against  the  assignee. 
As  it  was  desirable,  however,  that  the  rule  should  be  uniform,  he  would 
not  decide  the  point  without  conferring  with  some  of  the  judges  of  the 
common  law  courts. 

On  this  day  (Dec.  14)  his  Honor  delivered  judgment  to  the  follow- 
ing effect : 

I  have  had  the  opportunity  of  conversing  with  some  of  the  judges  at 
common  law  upon  the  point,  and  their  impression  is,  according  to  the 
inclination  of  opinion  which  I  expressed  at  the  hearing,  that  the  pro- 
vision made  in  the  Statute  is  to  be  considered  as  made  for  the  benefit 
of  the  creditors  alone,  and  that  it  is  not  competent  to  the  defendants 
to  take  advantage  of  the  objection  that  the  suit  has  been  instituted 
without  the  consent  of  the  creditors.  Upon  the  whole,  I  do  not  now 
hesitate  to  decide  that  this  suit  can  be  well  sustained  by  the  assignee, 
and  that  he  is  entitled  to  the  decree  sought  by  this  bill. 

If  there  be  collusion  between  the  plaintiffs  and  defendant  in  a  suit 
instituted  by  the  assignees  without  the  previous  consent  of  the  credi- 
tors, the  judgment  of  the  court  will  bind  the  interest  of  the  creditors; 
but  the  assignees,  in  such  case,  take  upon  themselves  the  responsibility 
that  the  suit  has  been  properly  instituted  and  properly  conducted. 


650  ILLEGAL   CONDITIONS   AND   RESTRAINTS  (Part  5 

BAGGETT  v.  MEUX. 

(Court  of  Chancery,  1846.     1  Tbil.  027.) 

On  the  hearing  of  an  appeal  in  this  case  from  the  decree  of  Vice- 
Chancellor  Knight  Bruce  ^  the  argument  turned  chiefly  on  the  ques- 
tion, whether  a  clause  in  restraint  of  alienation,  annexed  to  a  legal 
devise,  in  fee,  of  real  estate  To  a  rriarried  woman  for  her  separate  use  ~ 
was  efifectual  during  the  co^verture. 

The;  Lord^Chancellor  [Lord  Lyndhurst],  after  disposing  of 
the  other  points  of  the  case  in  a  few  words,  said,  with  respect  to  this : 
After  the  case  of  Tullett  v.  Armstrong,  4  My.  &  Cr.  377,  there  can 
be  no  doubt  about  the  doctrine  of  this  court  respecting  the  property 
given  to  the  separate  use  of  a  married  woman :  and  it  is  clear  that 
that  doctrine  applies  as  much  to  an  estate  in  fee  as  to  a  life  estate. 
The  object  of  the  doctrine  was^to  give  a  married  woman  the_enjoy- 
ment  of  property  independent  of  her  husband ;  butjo  securel:hat  ob- 
ject,  it  was  absolutely  necessary  to  restrain  iier  during  coverture Trom 
alienation;  The  feasoningevidently  appliesTo  a  lee  as^miiciras  to  a 
life  estate,  to  real  property  asmuch  as~to  personal.-  The^)ower  of  a 
married  womanTm^ependent  ol  the  trust  for  separate  use,  may  be 

1  See  1  Coll.  138,  where  a  detailed  statemeut  of  the  case  will  be  found. — 
Rep. 

2  Where,  however,  gifts  of  vested  personal  property  or  of  money  are  made 
directly  to  a  married  woman,  with  a  restraint  on  alienation,  it  seems  to  be 
assumed  that,  if  the  subject  of  the  gift  is  paid  to  her,  she  may  deal  with 
the  property,  and  the  clause  against  anticipation  will  be  practically  inef- 
fective. The  question  therefore  arises  whether  the  subject  of  the  gift  must 
not  remain  in  the  hands  of  the  trustee,  who  is  directed  to  pay  it  over.  In 
Gray's  Restraints  on  Alienation  (2d  Ed.)  §  131b  et  seq.,  the  cases  are  sum- 
marized as  follows: 

"(1)  When  the  settlor  or  testator  shows  anintention  that  the  property 
shall  continue  in  the  bauds  of  truiJlees",  and  tKefe  is  a  clause~agalhst  antici- 
pationr~'A  niiirried  woman  "Will  not  be  enUlled~to  have  the  property  fraus- 
f  erred  to  lier,~altTiou  glT  her  interest  be  a  bsoliTFe ;  that  is,  the  courts  wHt, 
in  tKe~ca?e  of  a  mariied  wonmn,  give  that  effect  to  the  intention  of  the 
settlor  or  testator,  which  on  the  ground  of  public  policy,  they  refuse  to  give 
in  the  case  of  other  persons.  Re  Benton.  19  Ch.  D.  277 ;  Re  Spencer,  30 
Ch.  D.  1S3;  Re  Grey's  Settlements,  34  Ch.  Div.  85,  712;  Tippetts  &  New- 
bould's  Contract,  37  Ch.  Div.  444.  See  Re  Bown,  27  Ch.  Div.  411 ;  Re  Wood, 
61  L.  T.  N.  S.  197. 

"(2)  When  there  is  a  direction  to  pay  and  divide  moneys  and  securities, 
after  an  interveiiiug  life  estate  or  other  intervening  interest,  iutoTIie~lTah'd§^ 
of  a^marriM^vomaBrTiTiil  that  bet^-receTpt  alone  sliall  be  snflrclenl  discllirfge;~ 
the  clause  jigaiggt  anticlpatiou 'wilL  be  considered  as  meant  to  be  coiTHned 
to^FBegontinuance  of~tlTe  life-  OF-©ther-jiiter«-sf .  and  as  intended  trT  rest  rTfln^ 
anticiimtiou   of   the   triisf ^ prDlJ5rty   only    duriiiL:    that   period^     Ke    Svkes's^ 
Trusts,  2  J.  &  11.-415,  §  127,  ttirtei    Re  (  ivn^hioiis  Trust,  8  Ch.  D.  460,  § 
131,  ante ;    Re  Bown.  27  Ch,  Div.  811 ;    Re  Holmes,  67  L.  T.  N.  S.  335.     See 
Re  Hutchings,  58  L.  T.  N.  S.  6.     The  case  of  Re  Caskell's  Trusts,  11  Jur.  N. 
S.  780,  §  129,  ante,  seems  contra."     In  re  Coombes,  W.  N,   (1883)   169,  sup- 
ports the  same  rule. 

"(3)  Whenjhei'e  is  an  immediate  gift  to  a  married  woman,  and  yet  there 
is  a  clause  against  ahficrpation,  wliat  is  to  Be  done?  Tlere  are  two  irreoon- 


Ch.  3)  RESTRAINTS   ON  ALIENATION  651 

different  in  real  estate  from  what  it  is  in  personal :    but  a  court  of 
equity  having  created  in  both  a  new  species  of  estate,  may  in  both 
cases  modify  the  incidents  of  that  estate. 
Appeal  dismissed,  with  costs. ^ 


ANDERSON  v.  GARY. 
(Supreme  Court  of  Ohio,  ISSl.    36  Ohio  St.  506,  38  Am.  Rep.  602.) 

This  action  was  commenced  on  December  26,  1874,  by  the  plaintiff, 
in  the  Court  of  Common  Pleas  of  Ashland  County,  to  subject  certain 
real  estate,  as  the  property  of  Thomas  C.  Cary,  to  the  satisfaction  of 
certain  alleged  liens,  by  mortgage  and  leyy  of  execution,  which  the 
plaintiff  claimed  to  have  secured  for  certain  indebtedness  of  said 
Thomas  to  him.  The  liens  claimed  by  plaintiff  are  upon  the  undivided 
half  of  a  certain  tract  of  land  devised  to  said  Thomas  and  his  brother, 
Charles  L.  Cary,  by  the  eighth  item  of  the  will  of  their  father,  George 
W.  Cary,  executed  in  the  year  1867,  at  which  time  both  Thomas  and 
Charles  were  minors,  Charles,  the  younger,  being  about  fourteen 
years  of  age. 

The  defendants  are  said  Thomas  and  Charles,  Mary  Elizabeth  Gary, 
their  mother,  and  widow  of  said  George  W.  Cary,  and  divers  others, 
claiming  liens  on  said  undivided  half  of  said  lands.     The  principal 

cilable  provisions,   and   yet   the  settlor   or   testator  was   apparently   uncon- 

sciotrs-xrf  the  inconsistency."  — . 

~tn  a_number  of  cases  the  court  has  refused  to  order  the  transfer  of  the 
fund  tothe~married  woman.  ~"Re  Ellis's  TrTrgfgrl7^CIr.~D.  409;  Re  Currey, 
S^Cnrrr.-Seir-Re  f^larbeV-Trusts  21  Ch.  D.  748;  Re  Sarel,  10  Jur.  N.  S. 
876.  In  re  Spencer,  30  Ch.  D.  183,  the  married  women  were  not  allowed 
to  have  accumulations  of  income  paid  over  to  them.  Compare  In  re  Taber, 
51  L.  J.  N.  S.  Ch.  721. 

3  See,  also.  Bell  v.  Bair,  89  S.  W.  732,  28  Ky.  Law  Rep.  614  (1905)  ;  In 
re  Dawbin,  12  Vict.  L.  R.  477  (1896) ;  In  re  Adamson,  2  N.  S.  W.  St.  R.  Eq. 
67  (1902).  In  Jeanneret  v.  Polack,  15  N.  S.  W.  R.  Eq.  102  (1894),  it  was 
held  that  a  contract  by  a  married  woman  to  convej-  her  separate  estate  when 
she  should  become  discovert  was  in  violation  of  the  restraint  on  alienation 
attached  to  her  separate  estate,  and  unenfoi'ceable. 

A  fortiori,  the  restraint  when  attached  to  a  married  woman's  separate 
equitable  interest  for  life  is  valid,  and  an  attempted  alienation  in  defiance 
of  the  restraint  is  void.  Jackson  v.  Hobhouse,  2  Mer.  483  (1817) ;  Bateman 
V.  Faber,  L.  R.  [1897]  2  Ch.  223,  L.  R.  [1898]  1  Ch.  144. 

But  after  the  death  of  the  husband  the  widow  and  those  entitled  after 
her  death  may  join  in  requiring  a  termination  of  the  trust  and  the  pay- 
ment of  the  principol  to  the  widow.     Barton  v.  Briscoe,  Jac.  603  (1822). 

But  if  the  trust  is  not  so  terminated,  and  the  widow  marries  again,  the 
clause  against  anticipation  again  becomes  operative.  ToUett  v.  Armstrong, 
4  Myl.  &  Cr.  377  (1840).  As  to  the  law  on  this  point  in  Pennsylvania,  see 
Gray,  Restraints  on  Alienation  (2d  Ed.)  §  276. 

The  restraint  on  alienation  attached  to  a  married  woman's  separate  es- 
tate is  clearly  effective,  though  it  is  created  by  the  act  of  the  woman  in 
settling  her  own  property  upon  herself.  Clive  v.  Carew,  1  J.  &  H.  199  (1859) ; 
Arnold  v.  Woodhams,  L.  R.  [1873]  16  Eq.  29, 


652  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  5 

defence,  however,  is  made  by  Charles  L.  Cary,  who  claims  to  be  the 
owner  of  the  entire  tract  free  from  all  encumbrances,  as  will  hereafter 
appear. 

The  claim  of  the  plaintiff,  James  Anderson,  may  be  stated  thus : 
On  January  1,  1872,  Thomas  C.  Cary,  being  then  of  full  age,  in  con- 
sideration of  money  loaned,  executed  to  the  plaintiff  his  promissory 
note  for  $1,500,  payable  in  one  year,  with  interest  at  the  rate  of  eight 
per  cent. ;  and  to  secure  the  payment  thereof  executed  (with  his  wife) 
a  mortgage  upon  the  undivided  half  of  said  tract  of  land,  which  was 
duly  recorded  in  Ashland  County,  where  said  lands  were  situate. 
Afterwards,  in  December,  1874,  the  plaintiff  obtained  judgment  on 
said  note  by  confession,  under  a  cognovit,  against  said  Thomas,  in  the 
Court  of  Common  Pleas  of  Richland  County,  and  caused  execution 
thereon  to  be  levied  on  said  undivided  half. 

Thereupon,  the  mortgages  having  been  executed  by  said  Thomas 
upon  his  interest  in  said  lands,  and  other  executions  against  him  hav- 
ing been  levied  thereon,  this  suit  was  brought  to  marshal  liens  and 
sell  the  property  to  satisfy  the  same. 

After  the  commencement  of  this  action,  and  after  service  of  sum- 
mons, to  wit:  on  March  22,  1875,  by  contract  in  writing,  Thomas  C 
agreed  to  sell  and  convey  his  undivided  half  of  said  lands  to  Charles 
L.,  in  consideration  whereof  Charles  L.  agreed  to  pay  to  Thomas  the 
sum  of  $7,125,  to  be  applied  chiefly  to  the  satisfaction  of  the  debts  of 
said  Thomas,  which  he  had  secured  by  mortgage  or  judgment  liens  on 
said  premises.  In  this  contract,  however,  the  lien  of  the  plaintiff  (if 
lien  he  had)  was  postponed  to  junior  liens,  so  that  the  purchase- 
money  was  exhausted  before  the  claim  of  plaintiff  was  satisfied. 

By  this  contract  of  purchase  Charles  claims  that,  under  the  will 
of  his  father,  by  which  alone  the  estate  of  Thomas  in  said  lands  was 
created,  his  right  to  the  undivided  half  devised  to  Thomas  is  inde- 
feasible and  unencumbered  by  any  lien  or  claim  in  favor  of  the  plain- 
tiff. 

In  the  Court  of  Common  Pleas  judgment  was  rendered  against  the 
plaintiff,  whose  petition  was  dismissed.  From  this  judgment  the 
plaintiff  appealed  to  the  District  Court,  where  the  case,  with  an 
agreed  and  certified  statement  of  facts,  was  reserved  for  decision  in 
this  court. 

McIivVAiNK,  J.  The  decision  of  this  case  depends  on  the  construc- 
tion and  effect  to  be  given  to  the  last  will  and  testament  of  George  W. 
Cary.  The  question  to  be  decided  is,  did  the  plaintiff,  by  his  mort- 
gage from  Thomas  C.  Cary,  or  by  his  levy  upon  the  same  premises, 
acquire  a  lien  thereon?  The_plaintiff  claims  that  the  interesL^r  es- 
tate_of_Thomas  C^  devised  to  him  in  the  eighth  item  of  his  father's 
will^s  to  the  farm  on~which  the  testator  resided,  was  subject  to  a  lien 
under  both  the  mortgage  and  execution ;  andT  that  the  subsequent  sale 
of  this  interest  or  estate,~by  Thomas  to  Charles,  did  not  displace  the 
lien  either  of  the  mortgage  or  the  levy.    These  claims  of  the  plaintiff 


Ch.  3)  RESTRAINTS   ON  ALIENATION  653 

are  contested  by  Charles.  What,  then,  was  the  true  intent  of  the  tes- 
tator?   And,  what,  the  force  and  effect  of  this  devise? 

The  provisions  of  the  will  which  at  all  affect  the  question  before  us 
are  as  follows : 

"Item  Fourth. — I  give  and  bequeath  to  my  beloved  wife,  Mary 
Elizabeth,  the  sum  of  six  hundred  dollars,  to  be  paid  out  of  my  per- 
sonal estate,  one  hundred  dollars  of  the  same  to  be  paid  over  to  her 
out  of  the  first  moneys  collected  by  my  executor. 

"Item  Fifth. — I  give  and  bequeath  to  my  two  sons,  Thomas  C. 
Cary  and  Charles  Lincoln  Cary,  the  residue  of  moneys  and  the  pro- 
ceeds of  my  obligations  after  giving  the  legacies  aforesaid,  the  same 
to  be  divided  equally  between  them,  share  and  share  alike. 

"Item  Sixth. — The  balance  of  my  personal  estate,  consisting  of  per- 
sonal property,  farming  implements,  stock,  cattle,  sheep,  and  all  other 
property,  personal,  except  one  top  buggy  and  such  surplus  of  grain 
on  hand  as  shall  not  be  needful  for  the  purposes  of  the  farm,  which 
are  to  be  sold  by  my  executor,  I  give  and  bequeath  to  my  wife  afore- 
said, and  to  my  children  before  named  for  the  purposes  of  carrying  on 
my  farm,  until  my  oldest  son,  Thomas  C.  Cary,  arrives  at  full  age, 
they,  the  said  family,  to  use  the  said  property  in  common  for  the  pur- 
poses of  carrying  on  said  farm  and  enjoying  the  proceeds  of  the  same, 
and  when  my  oldest  son  arrives  at  the  age  of  majority,  then  I  desire 
that  my  said  daughter,  Mary  Elizabeth,  shall  sell  her  interest  in  the 
said  property  so  held  in  common  to  my  said  wife  and  sons,  before 
named.  Then  the  said  Mary  to  have  for  her  said  interest  in  said  last 
named  property  the  appraised  value  of  such  property  as  has  been 
appraised  and  such  property  as  has  been  accumulated  from  said  farm 
during  said  period,  prior  to  the  said  majority  of  said  Thomas,  to  be 
equally  divided,  and  the  said  Alary  Elizabeth  to  be  paid  such  amount 
for  her  interest  as  shall  be  agreed  upon  between  them,  she  to  sell  to 
them,  the  said  sons  and  my  said  wife,  her  interests  in  said  property  as 
aforesaid. 

"Item  Seventh. — I  give  and  bequeath  to  my  said  wife  all  my  house- 
hold and  kitchen  furniture,  beds,  bedding  of  every  kind  whatever,  and 
wdien  my  said  son  Thomas  shall  have  arrived  at  the  age  of  majority  as 
aforesaid,  from  and  after  that  time  I  give  and  bequeath  and  so  direct 
that  my  said  wife  shall  have  in  lieu  of  dower  one-third  of  the  rents  and 
profits  of  the  farm  on  which  I  now  reside  in  Green  township  aforesaid, 
as  long  as  my  said  wife  shall  remain  my  widow,  and  in  the  event  of  her 
marriage  then  I  order  and  direct  that  she  shall  forfeit  her  said  dower  as 
aforesaid,  and  in  lieu  thereof  I  direct  that  my  two  sons,  Thomas  and 
Lincoln,  shall  pay  to  her  the  sum  of  tw^enty-five  hundred  dollars,  one 
thousand  of  wdiich  shall  be  paid  within  sixty  days  after  such  marriage 
and  the  balance  in  three  equal  annual  payments  without  interest.  This 
last  item  and  the  six-hundred-dollar  item  and  the  former  provisions 
made  in  the  foregoing  specifications  are  to  be  in  lieu  of  all  her  dower  in 


654  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  5 

all  my  real  estate,  including  three  hundred  and  twenty  acres  of  land  I 
own  in  the  State  of  Iowa. 

"Item  Eighth. — I  give  and  bequeath  the  farm  on  which  I  now  live, 
of  two  hundred  and  eighty-five  acres,  to  my  two  sons,  Thomas  and 
Lincoln,  upon  the  following  conditions:  1.  I  direct  that  they,  the  said 
sons,  shall  not  be  allowed  to  sell  and  dispose  of  said  farm  until  the^ 
expiration  of  ten^^yearilfrgm  the  time  my  son,^harles  Lincoln,  arrives 
at  full  age,  except  to^one_another^nor  shall  either  of  my  said  sons  have 
authority  to  rhortgage  or  encumber  said  farm  in  any  manner  whatso- 
everTexcept  in  th'e^sale  to  one  another  as  aforesaid.  I  also  give  and  be- 
queath  to  my  twoTorTs~aToresaid,  two  hundred  and  forty  acres  of  land 
lying  in  the  south-east  corner  of  Fayette  County,  Iowa,  which  I  receiv- 
ed by  deed  from  Richard  Probert,  and  the  same  is  now  on  record  in 
said  county;  also  eighty  acres  of  land  in  Chickasaw  County,  Iowa, 
which  I  received  by  deed  from  A.  H.  Crawford." 

What  estate  in  the  home  farm  did  the  testator  intend,  by  the  eighth 
item,  to  give  to  his  sons  ?  By  section  55  of  the  Wills  Act  of  1852,  in 
force  when  this  will  was  made,  it  was  provided,  "every  devise  of  lands, 
tenements  and  hereditaments,  in  any  will  hereafter  made,  shall  be  con- 
strued to  convey  all  the  estate  of  the  devisor  therein,  which  he  could 
lawfully  devise,  unless  it  shall  clearly  appear  by  the  will  that  the  de- 
visor intended  to  convey  a  less  estate."  The  estate  of  the  devisor  in 
these  lands  was  an  absolute  fee  sjmple.  By  other  provisions  in  this  will, 
it  is  clear  that  the  testator  intended  that,  from  the  majority  of  Thomas, 
his  widow,  so  long  as  she  remained  a  widow,  should  have  one-third  of 
the  rents  and  profits  of  said  farm.  Whether  the  right  thus  given  to  the 
widow  was  an  interest  in  the  land,  or  an  interest  in  the  rents  and 
profits  as  such,  it  is  quite  clear  to  our  minds  that  the  fee  simple  abso- 
lute, subject  to  the  right  of  the  widow,  passed  to  the  sons,  as  fully  and 
amply  as  the  testator  "could  lawfully  devise"  it.  It  is  true,  the  testa- 
tor coupled  with  the  devise  the  words :  "Upon  the  following  condi- 
tions :  I  direct  that  they,  the  said  sons,  shall  not  be  allowed  to  sell  and 
dispose  of  said  farm  until  the  expiration  of  ten  years  from  the  time 
my  son,  Charles  Lincoln,  arrives  at  full  age,  except  to  one  another,  nor 
shall  either  of  my  said  sons  have  authority  to  mortgage  or  encumber 
said  farm  in  any  manner  whatsoever,  except  in  the  sale  to  one  another 
as  aforesaid."  But  by  these  conditions  (so  nominated)  we  d^_not 
understand  that  the  testator  intended  a  forfeiture  upon  breach ;  there 
is  lioTlmrEatloh^oveFln  favor  of  anyone ;  and  if  a  forfeiture  for  the 
benefit  of  his  heirs  was  intended,  the  devisees,  being  two  of  his  three 
heirs,  would  each  have  inherited  a  third  part;  so  that,  as  heir  of  the 
testator,  Thomas  C.  had  full  power  to  charge  one-third  of  the  land  by 
mortgage  to  the  plaintifif.  But  there  is  no  indication  in  the  will,  or  in 
the  circumstances  of  the  testator,  that  he  intended,  in  any  event,  to  die 
intestate  as  to  this  property ;  while,  on  the  other  hand,  it  seems  clear 
to  us  that  the  testator  intended,  in  all  events,  that  his  sons  should  take 


Ch.  3)  RESTRAINTS   ON  ALIENATION  655 

this  farm,  subject  to  the  rights  given  to  their  mother,  to  have  and  to 
hold  the  same  to  them  and  their  heirs  forever.  Instead  of  giving  to  his 
sons  an  estate  in  the  land  less  than  a  fee  simple,  his  intent  and  purpose 
was  to  give  them  the  fee  simple,  but  to  eliminate  therefrom  its  inherent 
elemenFof  alienability,  for  a  limitedj3eriodj_or  to  incajpachate  hls_  devi^- 
sees,  although  sui  juris,  from  disposing  of  their  property  for  the  same 
limited  period7"to  win~TintTr  the^  y oungeF^shouTd  'arrive'  at  thirty-one 
years  of  age — each  and  both  of  which  purposes  are  repugnant  to  the 
nature  of  the  estate  devised. 

By  the  policy  of  our  laws,  it  is  of  the  very  essence  of  an  estate  in  fee 
simple  absolute,  that  the  owner,  who  is  not  under  any  personal  disabili- 
ty imposed  by  law,  may  alien  it  or  subject  it  to  the  payment  of  his 
debts  at  any  and  all  times ;  and  any  attempt  to  evade  or  eliminate  this 
element  from  a  feesimple  estate,  eithein5y  deed  orTjy  will,  musf^Be" 
declared  void  and  of  no  force.    Hobbs  v.  Smith,  15  Ohio'  St.  419. 

Of  course,  we  do  not  deny  that  the  owner  of  an  absolute  estate  in  fee 
simple  may  by  deed  or  by  will  transfer  an  estate  therein  less  than  the 
whole,  or  may  transfer  the  whole  upon  conditions,  the  breach  of  which 
will  terminate  the  estate  granted,  or  that  he  may  create  a  trust  whereby 
the  beneficiary  may  not  control  the  corpus  of  the  trust,  or  even  antici- 
pate its  profits.  But  as  we  construe  this  will,  nothing  of  the  kind  has 
been  here  attempted.  The  attempt  here  was  to  fasten  upon  the  estate 
devised  a  limitation  repugnant  tn  the  estate,  which  limitation,  and  not 
the  devise,  must  be  for  that  reason  declared  void. 

It  is  contended  on  behalf  of  defendant,  Charles  L.  Gary,  that  by  this 
devise  an  estate  in  trust,  until  the  younger  son  should  arrive  at  the  age 
of  thirty-one,  was  created  for  the  benefit  of  the  widow  and  children  of 
the  testator.  That  such  was  the  effect  of  the  so-called  "conditions," 
when  construed  in  connection  with  other  clauses  of  the  will.  We  do 
not  so  understand  the  will. 

When  the  elder  son,  Thomas,  arrived  at  age,  the  daughter  ceased  to 
have  any  right  whatever  in  the  devised  premises. 

The  right  of  the  widow  to  one-third  the  rents  and  profits  of  the  farm 
was  not  affected  by  the  arrival  of  Charles  at  thirty-one  years  of  age, 
and  did  not  affect  the  absolute  character  of  the  devise  to  the  sons.  If 
she  took  during  widowhood  one-third  of  the  lands,  the  sons  took  a 
vested  remainder  in  that  portion,  and  a  present  vested  estate  in  the  other 
two-thirds.  If  her  right  was  to  rents  and  profits  as  such,  and  the  same 
was  made  a  charge  upon  the  lands,  the  estate  of  the  sons  nevertheless 
vested  in  them  and  for  their  own  benefit,  subject  to  the  encumbrance. 
The  relation  of  trustee  and  cestui  que  trust  existed  between  them  in  no 
proper  sense.  The  grantees  of  the  sons  would  have  stood  in  the  same 
relation  to  the  widow.  No  relation  of  personal  confidence  or  trust  was 
created,  but  one  growing  out  of  property  rights  alone — strictly  legal 
rights.  Whatever  may  have  been  the  desire  of  the  testator  as  to  his 
widow  remaining  on  this  farm  after  the  majority  of  the  elder  son,  it  is 


656  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  5 

quite  clear  tliat  the  rights  of  the  devisees  were  not  made  to  depend  on 
that  event.  The  personal  relations  of  the  members  of  his  family  were 
not  provided  for  after  the  arrival  of  Thomas  at  age,  but  their  property 
rights,  respectively,  were  defined ;  and  the  rights  of  neither  were  sub- 
jected to  the  control  or  supervision  of  the  other.  There  was  no  trust 
created. 

If  we  could  find  in  this  devise  a  trust  in  favor  of  the  widow,  until 
Charles  should  arrive  at  thirty-one  years  of  age  (and  certainly  there  was 
none  before,  if  not  after),  so  that  no  absolute  estate  vested  in  the  sons 
previous  to  the  termination  of  such  trust  estate,  or  if  we  could  find  a 
condition  which  prevented  the  vesting  of  the  fee  for  such  limited  peri- 
od, or  a  condition  subsequent  upon  the  happening  of  which  tlie  estate 
devised  could  be  defeated,  a  different  conclusion,  no  doubt,  would  be 
reached. 

But  the  case  before  us,  is  the  devise  of  an  absolute  fee,  with  a  clause 
restraining  the  alienation  and  encumbering  of  the  estate  for  a  limited 
period,  intended,  no  doubt,  for  the  protection  of  the  devisees,  who 
alone  are  interested  in  the  estate  devised.  In  holding  that  such  restraint 
is  repugnant  to  the  nature  of  the  estate  devised,  and  is  void  as  against 
public  policy,  which  in  this  State,  in  the  interest  of  trade  and  com- 
merce, gives  to  every  absolute  owner  of  property,  who  is  sui  juris,  the 
power  to  control  and  dispose  of  such  property,  and  subjects  the  same 
to  the  payment  of  his  debts,  we  are  fully  aware  of  the  fact  that  many 
authorities  may  and  have  been  cited  to  the  contrary.  Others,  however, 
support  the  view  we  have  taken,  but  I  shall  not  attempt  either  to 
review  or  reconcile  the  cases,  being  content  to  rest  the  decision  upon 
what  we  conceive  to  be  sound  principle  and  sound  policy.  The  owner 
of  property  cannot_transfer  it  absolutely  to  another,  and  at  the  same 
time  keep  it  himself.  We  fully  admit  that  he  may^restrain  or  lirnit  its 
enjoymentby  trusts,  conditions  or  covenants,  but  we  deny  that  he  can 
take  from  a  fee  simple  estate  its  inherent  alienable  quality,  and  still 
transTer  it  as  a  fee  simple!  '     ~~~~ 

Decree^  for  plaintiff.^ 

4  See,  also,  Mebane  v.  Mebane,  P,9  N.  C.  1.31,  44  Am.  Dec.  102  (1S45) ;  Key- 
ser's  Appeal.  57  Pa.  2.36  (ISGS) :  ^landlebaum  v.  McDonell.  29  Mich.  78,  18  Am. 
Rep.  61 ;  Kessner  v.  Phillips,  189  Mo.  515,  88  S.  W.  66,  107  Am.  St.  Rep.  368, 
3  Ann.  Cas.  1005. 


Ch.  3)  EESTRAIXTS   ON  ALIENATION  657 


BOSTON  SAFE  DEPOSIT  &  TRUST  CO.  v.  COLLIER." 

(Supreme  Judicial   Court  of   Massachusetts,   1916.     222   Mass.   390,    111   N. 

E.  163.) 

Bill  in  equity,  filed  in  the  Probate  Court  on  Xovember  25,  1914,  by 
the  trustee  under  the  will  of  Maturin  ISl.  Ballou,  late  of  Boston,  for  in- 
structions as  to  whether,  under  the  ninth  clause  of  the  will,  set  out 
in  the  opinion,  a  distributive  share  of  Franklin  B.  Ballou  should  be 
paid  to  him  or  to  his  trustee  in  bankruptcy,  the  defendant  Forrest  F. 
Colher. 

In  the  Probate  Court,  where  the  suit  was  heard  upon  the  plead- 
ings and  an  agreed  statement  of  facts,  Grant,  J.,  ordered  a  decree  di- 
recting that  the  share  be  paid  to  Franklin  B.  Ballou.  On  appeal  from 
that  decree  the  case  was  reserved  for  this  court  by  Braley,  J.,  upon 
the  pleadings  and  the  agreed  statement  of  facts.  .The  material  facts 
are  stated  in  the  opinion. 

Braley,  J.  The  testator,  in  the  ninth  clause  of  his  will,  provided : 
"It  is  my  will  that  every  payment  of  income  or  principal  hereinbefore 
d irected  or  devised  to  be  made  shall  be  made  personally  to  the  person s 
to  whom  they  are  devised  or  upon  their  order  or  receipt  in  writing, 
in~every  case  free  from  the  interference  or  control  of  creditors  of 
such  persons^nd  never  b}"  wav  of  anticipation  or  assignment." 

By  other  clauses  he  left  the  residue  of  his  estate  in  trust  to  pay  to 
his  widow  and  to  his  son  Murray  R.  Ballou,  in  equal  shares,  the  net 
income  for  life  and  upon  the  death  of  his  son  the  income  coming  to 
him  is  to  be  divided  equally  among  his  surviving  children  or  the  is- 
sue then  living  of  deceased  children  until  the  first  child  reached  or 
would  have  reached,  if  living,  the  age  of  forty,  but  in  any  event  not 
before  twenty-one  years  after  the  son's  death,  when  the  principal  is 
to  be  distributed  in  equal  shares  among  the  then  surviving  children  and 
the  issue  then  living  of  any  deceased  child. 

The  widow  is  still  living,  but  Murray  R.  Ballou  has  died,  leaving 
three  children  and  the  issue  of  a  deceased  child  surviving,  among 
whom  full  distribution  has  been  made  except  as  to  Franklin  B.  Ballou, 
a  son,  who  at  the  date  of  filing  the  petition  was  more  than  forty  years 
of  age. 

But  as  he  had  been  adjudged  a  bankrupt  before  distribution,  the 
respondent,  his  trustee  in  bankruptcy  contends,  that  although  a  dis- 
charge has  been  granted  he  is  entitled  to  the  share  coming  to  the  bank- 
rupt because  a  testator  cannot  nullify  a  bequest  of  an  absolute  legal 
interest  in  personal  property  by  a  provision_thaLthe_l£gate£'s_int£re^ 
shall  not  be  alienated,  nor  taken  tor  his  debts. 

ft  is  urged  that  the  restriction  is  repugnant  to  the  gift  or  bequest, 

5  The  consideration  of  this  case  might  well  be  postponed  until  after  the 
consideration  of  Claflin  v.  Claflin,  post,  p.  698. 

4  Kales  Pbop. — i2 


658 


ILLEGAL  CONDITIONS  AND   RESTRAINTS 


(Part  5 


and  the  English  rule  undoubtedly  is:    "That  if  property  is  given  it 
must  rernain_subject  to  the^incidents  of  property  and  it  could  not  b"e~ 
jireserved  from  tlie^reditors  unless  givenjo  some  one  else."    Brandon 
V.  Robinson,  18  Vesey,  433. 

But  in  Lathrop  v.  Merrill,  207  Mass.  6,  9,  92  N.  E.  1019,  from  which 
this  proposition  is  taken,  it  is  also  said :  *'On  the  other  hand  it  must 
be  taken  now  to  be  settled  in^  this  commonwealth  that  in  case  of  the 
devise  of  an  equitable  fee  in  land^or  the  be^iest"of  an  equitable  in- 
terest m  personal  property  therule  which  originated  IrTlBroadway  Nat. 
Bank  v.  Adams,  133  Mass.  170  [43  Am.  Rep.  504],  obtains,  and  lim- 
itations  against  alienation  and  forbidding  the  property  to  be  taken  loF 

the  deists' of  the  devisee  "or~teg:atee-  ar€  A^alixL Clafltn^v.  CI aftrn7 149 

Mass.  19  [20  N.  E.  454,  3  L.  RT  A.  370,  ITAm.  St.  Rep.  393]  ;  Young 
V.  Snow,  167  ]\Iass.  287  [45  N.  E.  686]  ;  Danahy  v.  Noonan,  176  Mass. 
467,  57  N.  E.  679 ;  Hoffman  v.  New  England  Trust  Co.,  187  Mass. 
205  [72  N.  E.  952]»;  Dunn  v.  Dobson,  198- Mass.  142  [84  N.  E.  327]." 

It  is  nevertheless  now  pressed  in  argument  that  this  court  never 
has  gone  so  far  as  to  say  that  an  equitable  fee  can  be  placed  beyond 
the  reach  of  creditors.  The  reasoning  in  Bj;oadway^at.  Bank  v.  Adams, 
133  Alass.  170,  173  [43  Am.  Rep.  504],  is  not  thus  HmitedT^aid  Chief 
Justice  Morton,  speaking  for  the  court:  "We  do  not  see  why  the 
founder  of  a  trust  may  not  directly  provide  thaOiis  property  shall  go 
to  His  beneficiary  with  the  restriction  tliat  it'shalfnot  be  alienable  by 
anticipation^_arid_thatJiis  creditors  shall  not  have  the  right lo^attacF "it 
in"^Hvance7jnstead__or[in(^  reaching  the  same  result  by  a  pro- 

vision ToiTa  cesser  or  limitatjon^aver,  o"Fby  givinghis  trustees  a  cTTscfe- 
tion"as~to  paying  it.  He  has,  the  entire  jus  disponeiidi7  which  imparts 
that  he  may  give  it  absolutely,  or  may  impose  any  restrictions  or  fet- 
ters not  repugnant  to  the  nature  of  the  estate,  which  he  gives.  Under 
our  system,  creditors  may  reach  all  the  property  of  the  debtor  not  ex- 
empted_by  law^  but  they__^cannoEIeQlafge; JtheZgift^ 
*  "^  *  and  take  more  than  he  has  given.  *  *  *  It  is  argued^that 
investing  ajiTan_with_jipparent  jwealth  tends  to  mislead  creditors  and 
rive  him  credit. 


to  induce  themrto  give  him  credit.  The  answer  is  that  creditors  have 
no  right  to  rely  upon  property  lHus~held7~an"drTo"give  him  credrmpTjn 
the  basfs  of  an  estate  which,  by  the  instrument  creating  it,Ts  declared 
to  be  ^^al^enable  T)y Ihim  _and  not  liable  for  his_debts.  B}?" tfre  exercise 
of  proper  diligence  they  can  ascertain  the  nature  and  extent  of  his  es- 
tate, especially  in  this  commonwealth,  where  all  wills  and  most  deeds 
are  spread  upon  the  public  records.  There  is  the  same  danger  of  their 
being  misled  by  false  appearances,  and  induced  to  give  credit  to  the 
equitable  life  tenant  when  the  will  or  deed  of  trust  provides  for  a  ces- 
ser or  limitation  over,  in  case  of  an  attempted  alienation,  or  of  bank- 
ruptcy or  attachment." 

The  trust  in  question  is  not  within  the  rule  against  perpetuities  or 
open  to  the  objection  of  the  accumulation  of  property  by  corporations 
or  ecclesiastical  bodies  of  which  the  common  law  was  exceedingly  jeal- 


Ch.  3)  RESTRAINTS   ON  ALIENATION  659 

ous.  And  whether  income  or  principal  is  placed  beyond  the  power 
of  alienation  or  of  attachment,  the  result  to  creditors  of  the  beneticiary 
is  merely  a  question  of  degree. 

The  owner,  of  course,  cannot  settkjiis  property  in  trust,  putting  his 
right  to  the  income  which  is  Reserved  to  himself  for  life  beyond  the 
reach  of  creditors.  If,  however,  the  founder  is  not  the  debtor,  the  prop- 
erty held  inTrusTis  not  the  debtor's  except  in  so  far  as  the  founder 
has  provided.    Pacific  Nat.  Bank  v.  Windram,  133  Mass.  175,  176. 

We  are  manifestly  dealing  with  a  rule  of  property  which  there  is 
every  reason  to  believe  has  been  accepted  and  acted  upon  by  the  bar, 
settlors  and  testators  for  thirty-three  years,  since  the  leading  case  stat- 
ing the  law  governing  the  creation  of  equitable  estates  was  decided. 
It  therefore  becomes  necessary  to  review  our  own  cases  subsequent  to 
Broadway  Nat.  Bank  v.  Adams  in  order  to  determine  whether  there 
has  been  any  departure  from  the  doctrine  enunciated  in  that  case, 
which  has  been  referred  to  and  followed  in:  Pacific  Nat.  Bank  v. 
Windram,  133  Mass.  175;  Foster  v.  Foster,  133  Mass.  179;  Forbes 
V.  Lothrop,  137  Mass.  523 ;  Potter  v.  Merrill,  143  I\Iass.  189,  9  N.  E. 
572;  Baker  v.  Brown,  146  Mass.  369,  15  N.  E.  783;  Sears  v.  Choate, 
146  Mass.  395,  15  N.  E.  786,  4  Am.  St.  Rep.  320;  Claflin  v.  Claflin, 
149  Mass.  19,  20  N.  E.  454,  3  L.  R.  A.  370,  14  Am.  St.  Rep.  393 ; 
Maynard  v.  Cleaves,  149  Mass.  307,  21  N.  E.  376;  Slattery  v.  Wason, 
151  Mass.  266,  23  N.  E.  843;  7  L.  R.  A.  393,  21  Am.  St.  Rep.  448 ;  Bil- 
lings V.  Marsh,  153  Mass.  311,  26  N.  E.  1000,  10  L.  R.  A.  764,  25 
Am.  St.  Rep.  635;  Wemyss  v.  White,  159  Mass.  484,  34  N.  E.  718; 
Nickerson  v.  Van  Horn,  181  Mass.  562,  64  N.  E.  204;  Alexander  v. 
McPeck,  189  Mass.  34,  75  N.  E.  88;  Huntress  v.  Allen,  195  ^lass. 
226,  80  N.  E.  949,  122  Am.  St.  Rep.  243 ;  Dunn  v.  Dobson,  198  Mass. 
142,  84  N.  E.  Z27;  Berry  v.  Dunham,  202  Mass.  133,  88  N.  E.  904; 
Lathrop  V.  ^lerrill,  207  Mass.  6,  92  N.  E.  1019 ;  Shattuck  v.  Stickney. 
211  Mass.  327,  97  N.  E.  774;  and  Hale  v.  Bowler,  215  Mass.  354, 
102  N.  E.  415.  We  do  not  propose,  however,  to  comment  on  all  of 
them. 

In  Claflin  v.  Claflin,  149  Mass.  19,  20  N.  E.  454,  3  L.  R.  A.  370,  14 
Am.  Sfr~Repr~395,~the  bequest  was  one-third  of  the  residue  of  the 
personal  estate  to  trustees  in  trust,  "to  sell  and  dispose  of  the  same 
and  to  jpay  the  proceeds  thereof  to  my  son  in  the  manner  following, 
viz. :  $10,000  when  he  is__of  the  age  of  twentv-oii£_j^:ears ;  $10.000. 
\vlien  heis  of  the  age  oftwenty-five  years,  and  the  balance  jvyhen^  e 
is  of  the  age  of  thirty  years."  The  trustees  paid  over  the  first  $10,- 
000,  and  thereupon  the  son,  claiming  that  he  had  the  entire  beneficial 
interest  both  in  the  income  and  the  property  itself,  brought  a  bill  in 
equity  to  obtain  the  residue.  It  was  held  that  the  testator  had  a  right 
to  impose  restrictions,  and  there  was  no  reason  why"  his  Tntention 
shoukT^eJhwaitedT^rid  that  the  provisions  of  the  will  should  be  car- 
ried  out. 


GGO  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  5 

The  gift  comprised  not  only  income,  but  principal ;  and  it  is  signifi- 
cant that  when  referring  to  Broadway  Natl.  Bank  v.  Adams,  the  court 
say :  "The  rule  contended  for  by  the  plaintiff  in  that  case  was  founded 
upon  the  same  considerations  as  that  contended  for  by  the  plaintiff  in 
this.     *     *     *" 

In  Huntress  v.  Allen,  195  :\Iass.  226,  80  N.  E.  949,  122  Am.  St.  Rep. 
243,  the  testator  created  a  trust  for  the  benefit  of  his  children  giv- 
ing absolute  discretion  to  the  trustees  as  to  payment  of  income  until 
the  youngest  child  should  reach  twenty-five,  the  property  then  to  be  di- 
vided among  those  surviving  and  the  issue  of  any  deceased  child,  with 
a  provision  that  the  share  of  any  child  in  the  body  or  income  of  the 
fund  should  not  be  liable  to  or  for  his  or  her  debts  or  subject  to  trus- 
tee process.  It  is  stated  in  the  opinion  that  the  exemption  of  the 
shares  of  the  children  from  interference  by  creditors  v/as  valid  and 
enforceable. 

In  Dunn  v.  Dobson,  198  Mass.  142,  84  N.  E.  327,  after  reference  to 
the  rule  of  the  common  law,  it  was  said,  Broadway  Nat.  Bank  v.  Adams 
and  Clafiin  v.  Claflin  decided :  "That  in  creating  an  equitable  estate 
a  donor  may  carve  out  and  create  such  equitable  rights  in  property 
as  his  fancy  may  dictate  and  his  imagination  devise,  without  regard 
to  the  rights  appertaining  to  the  several  estates  known  to  the  law.  This 
conclusion  was  stated  to  rest  on  the  doctrine  that  in  such  a  case  the 
donor  'does  not  give  them  an  absolute  estate  and  then  impose  restric- 
tions and  conditions  repugnant  to  the  estate,  but  gives  an  ownership 
qualified  by  the  directions'  adopted  by  the  donor;  see  Barker,  J.,  in 
Young  V.  Snow,  167  Mass.  287,  288,  289  [45  N.  E.  686]."  "This  must 
be  taken  to  be  a  settled  rule  of  property  not  now  to  be  questioned." 

We  have  already  referred  sufficiently  to  Lathrop  v.  Merrill,  207 
Mass.  6,  92  N.  E.  1019,  which  reiterates  the  same  doctrine,  and  ex- 
pressly affirms  Dunn  v.  Dobson. 

The  testator  in  Shattuck  v.  Stickney,  211  Mass.  327,  97  N.  E.  774, 
devised  and  bequeathed  one-seventh  of  the  residue  of  his  estate  "to 
my  said  executors  as  trustees  for  my  nephew  *  *  *  ^nd  I  author- 
ize and  direct  my  said  executors  as  such  trustees  to  invest  the  said 
share,  both  the  principal  and  the  income  thereof  as  it  shall  accrue, 
Avith  full  authority  to  them  to  sell  and  to  reinvest  the  said  principal  and 
income  as  often  as  they  may  deem  it  expedient  for  the  interest  of  the 
trust.  Whenever,  and  not  before,  they  shall  in  their  discretion  be 
satisfied  that  it  is  safe  and  proper  to  do  so,  they  may  pay  to  the  said 
[nephew]  any  part  or  the  whole  of  the  accumulation  of  the  said  trust. 
If  any  balance  of  such  trust  fund  shall  be  remaining  in  the  hands  of 
my  executors  as  such  trustees  upon  the  death  of  said  [nephew]  then, 
in  that  event,  the  same  shall  be  paid  by  them  as  follows.  *  *  *  " 
The  opinion  holds  that  "accumulation"  meant  the  fund  accumulated, 
and  included  both  the  original  principal  and  the  increase  from  arrears 
of  income,  and  that  the  trustees  were  empowered  in  their  discretion  to 
pay  a  part  or  the  whole  to  the  nephew.    "The  reasons  which  induced 


Ch.  3)  RESTRAINTS   OX   ALIENATION  661 

the  testator  to  place  the  share  of  this  nephew  beyond  the  control  of 
himself  and  of  possible  creditors  do  not  appear.  It  may  be  significant 
that  the  case  of  Broadway  Nat.  Bank  v.  Adams,  133  Mass.  170,  43  Am. 
Rep.  504,  had  been  recently  published  at  the  date  of  the  will,  but  it 
is  quite  enough  that  the  testator  intended  to  treat  alike  all  of  his  heirs, 
including  this  unmarried  nephew,  and  that  the  restraints  upon  the 
nephew's  power  to  control  his  one-seventh  portion  was  placed  there 
solely  for  his  benefit.  It  is  also  apparent  that  the  testator  regarded  as 
this  nephew's  share  the  original  fund  and  any  income  the  trustees 
might  deem  it  best  to  withhold  from  him  and  reinvest.  Throughout 
item  ten  the  testator  treats  this  share,  including  the  original  prin- 
cipal as  well  as  the  accumulated  income,  as  a  single  fund,  not  only 
for  purposes  of  investment,  but  also  for  those  of  distribution." 

It  would  seem  beyond  question  from  this  examination,  that  if  words 
are  given  their  ordinary  meaning,  a  trust  of  the  nature  under  dis- 
cussion has  been  repeatedly  recognized  and  conformed  to  until  the 
legal  principle  involved  has  become  a  safe  and  well-established  rule 
afifecting  the  practical  administration  of  justice. 

If  as  the  respondent  argues  a  change  is  advisable,  taking  away  or 
limiting  this  testamentary  power,  it  should  come  through  legislative 
action  and  not  by  overruling  or  substantially  modifying  our  former  de- 
cisions. New  England  Trust  Co.  v.  Evans,  140  Mass.  532,  545,  4  N. 
E.  69,  54  Am.  Rep.  493 ;  Goodtitle  ex  dem.  Pollard  v.  Kibbe,  9  How. 
471,  475,  13  L.  Ed.  220. 

We  have  not  deemed  it  requisite  to  discuss  cases  from  other  juris- 
dictions. The  validity  of  such  trusts  is  recognized  by  the  great  weiglit 
of  AmericatTauthor^y.  Mason~vrRhode~Islalid  Hospital  Trust  Co., 
7S^Cgnn.  81,  61  Atiro7,  3  Ann.  Cas.  586;  Olsen  v.  Youngerman,  136 
Iowa,  404,  113  N.  W.  938;  Wagner  v.  Wagner,  244  111.  101,  91  N.  E. 
66,  18  Ann.  Cas.  490;  Roberts  v.  Stevens,  84  Me.  32o,  24  Atl.  873,  17 
L.  R.  A.  266;  Maryland  Grange  Agencv  v.  Lee,  72  Md.  161,  19  Atl. 
534;  Lampert  v.  Haydel,  96  Mp.  439,  9  S.  W.  780,  Th.  R.  A.  113, 
9  Am.  St.  Rep.  358 ;  Hardenburgh  v.  Blair,  30  Nj;.  Eq.  645 ;  Mat- 
tison  V.  :Mattison,  53  On  254,  100  Pac.  4,  133  Am.  St.  Rep.  829,  18 
Ann.  Cas.  218;  Siegwarth's  Appeal,  226  Pa.  591,  75  Atl.  842,  134  Am. 
St.  Rep.  1086;  Jourolmon  v.  j\Iassengill,  86  Tenn.  81,  5  S.  W.  719; 
Nichols  V.  Eaton,  91  IL_S-716,  23  L.  Ed.  254;  Shelton  v.  King,  229 
U.  S.  90,  33  Sup.  Ct.  686,  57  L.  Ed.  1086;  39  Cyc.  240,  241,  242,  and 
cases  cited  in  the  notes;  3  Ann.  Cas,  588,  1  Ann.  Cas.  221,  and  Perry 
on  Trusts  (6th  Ed.)  §  386a. 

The  decree  of  the  probate  court,  that  the  bankrupt  is  entitled  to  his 
share  of  the  estate  of  his  grandfather  in  the  possession  of  the  petition- 
er, should  be  affirmed. 

Ordered  accordingly.^ 

6  See.  also,  Wallace  v.  Foxwell,  250  111.  616,  95  N.  E.  9S5,  50  L.  R.  A.  (N. 
S.)  632  (1911) ;    7  111.  L.  R.  445. 


662  ILLEGAL  CONDITIONS  AND  RESTRAINTS  (Part  5 


CHAPTER  IV 

RESTRAINTS   ON  THE   ALIENATION   OF  ESTATES   FOR 
LIFE  AND  FOR  YEARS 


BRANDON  V.  ROBINSON  et  al. 
(Court  of  Chancery,  1811.    1  Rose,  197.) 

Stephen  Goom,  by  his  will,  bearing  date  the  1st  of  August,  1808, 
devised  and  bequeathed  to  the  defendants,  Robinson  and  Davies,  all 
his  real  and  personal  estate  upon  trust,  to  sell  and  dispose  of  the  same ; 
and  after  payment  of  his  debts,  and  some  few  legacies,  upon  trust  to 
divide  the  residue  of  the  produce  of  such  sale,  amongst  his  children, 
Thomas  Goom,  William  Goom,  Mary  Wright,  Esther  Fuller,  Elizabeth 
Goom,  Stephen  Goom,  and  Margaret  Goom ;  and  he  directed  that  the 
eventual  share  and  interest  oj  his  son  Thomas  Goom.  of  and  in  his 
estate  and  effects  should  be  laid  out  in  the  public  funds,  or  on  Govern- 
ment securities  at  interest,  byand  in  the  nanTes  of  his  trustees  during 
his  life:  and  that  the  dividends,  interest,  and  produce  thereof,  as  the 
same  became  payable,  should  be  paid  by  them,  from  time  to  time,  into 
his_^wiLJgroper_hands,  or  on  his  proper  order  and  receipt,  subscribed 
with  his  own  proper  hand;  to  the  intent  that  the  same  should  not  be 
grantable.  transferable,  or  otherwise  assignable,  by  way  of  anticipation 
of  any  unreceived  payment  or  payments  thereof,  or  of  any  part  there- 
of ;  and  that  uporLhis  decease,  the  principal  of  such  share,  together 
with  the  dividends  and  interest,  and  produce  thereof,  should  be  paid 
and  applied  by  his  trustees,  unto  and  amongst  such  person  or  persons, 
as  in  acourse  of  administration  would  be  entitled  to  any  personal  estate 
o f^^His  said  son  Thnmag  Goom^  jjid  as  if  the  samp  h^A  he^^n  personal 
esta^teJjdLQng4ogJxLiiis_said_SQn,  and  he  had  died  intestate. 

The  testator  died  shortly  after  the  date  of  the  will. 

On  the  15th  of  June  1811,  a  commission  ofjjaiikrupt  issued  against 
Thomas  Goom.  under  which  the  plaintiff  was  the  surviving  assignee. 
The  bill  prayed,  that  the  will  might  be  established ;  that  the  clear  resi- 
due of  the  estate  and  effects  might  be  ascertained ;  and  that  the  plain- 
tiff might  have  the  benefit  of  such  part,  as  in  the  character  of  assignee 
he  should  be  found  entitled  to.  To  this  bill  there  was  a  general 
demurrer,  that  the  plaintiff'  had  no  right  or  title. 

The;  Lord  Chancellor  [Lord  Eldon].  Without  doubt  a  testator 
may  limit  his  property,  until  the  object  of  his  bounty  shall  become  bank- 
ruptjBut_iLisjequally  clear,  that  it  he  give  it  for  life,  he  cannot  take 
away  the  incidents  to  that  estate.     The  difference  is  very  great  be- 


Ch.  4)  RESTRAINTS   ON   ALIENATION  663 

tween  giving  aii  jnteresMo  a  personj\vhile  he  shall  remain  solvent,  and 
then  over ;  and  giving  it  for  Hfe.  If  there  be  a  limitation  over  in  the 
event  ofmsoTvency  or  hanlcruptcy,  then  neither  the  person  so"5ecoming^ 
banTcrupt  or  insolvent,  nor  his  assignees,  can  take  any  benefit  beyond 
theTerms  of  the  w^ilL  In  the  case  which  arose  upon  Lord  Foley's  will, 
6  Ves.  364,  it  was  argued,  and  I  thought  admitted,  that  if  the  es- 
tate w^ent  to  the  sons  as  property  in  them,  all  the  consequences  must 
attach. 

In  regard  to  property  given  to  the_separate  use  of  married  women, 
the  directions  originally  were,  that  the  money  was  to  be  pai^  into  their 
proper  hands,  and  their  receipts  alone  to  be  a  discharge ;  it  was  held 
that  a  married  woman  might  dispose  of  property  so  given  to  her,  and 
that  her  assignee  might  take  it,  as  this  court  would  compel  her  to  give 
her  own  receipt,  in  affirmance  of  her  own  contract.  In  Miss  Watson's 
Case,  the  words,  and_not  by  anticipation,  jwerfi__ijtitroduced  by  Lord 
Thurlow :  his  reasoning  was  this  ;  I  do^o^ her eby_take  away  any  of 
the  incidents  of  property  at  law ;  this  jnterest  which  a  marxied  woman" 
is^uffere^tojtake^is  ajgreature  of  equity,  and  equity  mayjGQOdifyLJthe 
power  of  alienation. 

But  it  is  quite  different  if  the  power  is  for  life ;  supposing  that  the 
bankrupt  makes  out,  thathe  neveFhas  an  interest,  till  he  attends  per- 
sonally; the  act  of  his  receipt  being  absolutely  necessary:  yet  if  he 
,  was  never  to  attend,  or  to  give  that  receipt,  and  arrears  were  to  accu- 
mulate, it  is  clear  that  those  arrears  would  be  assets  for  his  debts.  Jt^ 
is  not  enough  that  the  testator  has  said,  the  fund  shall  not  be  trans- 
f erred;  in  order  to  prevent  that,  it  must  be  given  over  to  somebody 
else!  Unless  therefore  by  implication,  it  falls  into  the  residue,  it  is  an 
equitable  interest,  to  which  the  assignees  are  entitled. 

As  tothe_principal  fund  after  the  death  of  the  bankrupt,  the  conclu^ 
sion  IS  different;  the  intention  of  the  testator  is,  "this  is  my  gift  my 
personal  estate,"  not  that  of  the  bankrupt's ;  to  go  as  my  property^tb 
ce"rfain~persons  whom  I  pomt  out  by  the  description  of  his,  the  bank- 
rupt's  next  of  kin.    This  demurrer  must  be  overruled.^ 


GREEN  V.  SPICER. 

(Court  of  Chancery,  1S30.     1  Russ.  &  M.  395.) 

Robert  Pinning  the  elder,  by  his  will,  devised  certain  real  estates 
to  John  Spicer  and  Daniel  Robertson,  and  their  heirs  and  assigns, 
"upon  trust  to  let  and  manage  the  same,  and  receive  the  rents,  issues, 
and  profits  thereof,  and  to  pay  and  apply  the  same  rents.  issues,_and 
])rofits  to  or  for  the  board,  lodging,  maintenance,  and  support,  and 
benefit  of  my  son  Robert  Pinning  at  such  times  and  in  such  manner  as 

1  S.  C.  18  Ves.  429. 


GG4:  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  5 

the^^jh:^]]jh'm\t  prnpprj  fnr  and  rlnjnripr  the  term  of  his  natural  lifcj  it 
being  my  wish  that  the  appHcation  of  the  rents  and  profits  for  the  bene- 
fit of  my  said  son  may  be  at  the  entire  discretion  of  the  said  John 
Spicer  and  Daniel  Robertson,  and  the  survivor  of  them,  and  the  heirs 
aticl  assigns  of  such 'survivor,  and  that  my  said  son  shall  not  have  any 
power  to  sell  or  mortgage,  or  anticipate  In  any  way  The  same  reht^ 
issues,  and  profits,  or  any  rents,  issues,  and  profits,  dividends  or  in- 
terestFTderlved  under  this  my  will."  ' 

Robert  Pinning  the  younger  had  taken  the  benefit  of  the  Act  for  the 
Relief  of  Insolvent  Debtors ;  and  the  bill_vyas  filed  by  the  assignee, 
praying  that  he  might  be  declared  entitled  to  the  rents  and  profits 
of  the  devised  hereditaments  during  tlie  life  of  Robert  Pinning  the 
younger. 

'I'he  Master  of  the:  Rolls  [Sir  John  Leach].  The  question  in 
the  cause  is,  whether  the  testator's  son  Robert  Pinning  takes  any 
estate  or  interest,  under  the  will,  other  than  by  the  exercise  of  the 
discretion  of  the  trustees. 

Robert  Pinning  takes  ajvested  life  estate  of  which  the  trustees  can- 
noLdeprive  him  by  any  .exercise  of  their^scretion :  they  arFbound  "to 
apply  the  rents,  issues,  and  profits  Tor  the  benefit  of  ^oberT  Pinning,"^ 
and  their  discretion  applies  only  to  the  manner  of  the  appIxcatTonT 

Decree  for  the  plaintiff. 


SNOWDON  V.  DALES. 
(Court  of  Chancery,  1834.     6  Sim.  524.) 

By  a  deed-poll  of  the  7th  of  December  1821,  after  reciting  two  in- 
dentures by  which  J.  Crosby  assigned  two  mortgage-sums  of  £1,000 
each,  to  trustees  upon  such  trusts,  &c.  as  he  should  appoint:  It  was 
witnessed,  and  Crosby  did  thereby  appoint  that  the  trustees  should 
stand  possessed  of  those  sums,  in  trust  for  himself  for  life,  and,  after 
his  decease,  in  trust  to  pay  thereout  £500  and  £700  to  his  wife's  daugh- 
ters, Susannah  Hepworth  and  Anne  Thompson,  respectively;  and, 
as  to  the  remaining  £800,  in  trust,  during  the  life  of  John  Doughty 
Hepworth,  his  wife's  son,  or  during  such  part  thereof  as  the  trustees 
should  think  proper,  and  at  their  will  and  pleasure  but  not  other- 
wise, or  at  such  other  time  or  times,  and  in  such  sum  or  sums,  por- 
tion and  portions  as  they  should  judge  proper  and  expedient,  to  al- 
low and  pay  the  interest  of  the  £800  into  the  proper  hands  of  the 
said  J.  Doughty  Hepworth,  or  otherwise  if  they  should  think  fit,  in  pro- 
curing for  him  diet,  lodging,  wearing  apparel  and  other  necessaries ; 
but  so  that  he  should  not  have  any  right,  title,  claim  or  demand  in  or 
to  such  interest,  other  than  the  trustees  should,  in  their  or  his  absolute 
an^  unconfrblled  power,  discretion  and  inclination,  think  proper  or 
expedient,  andHso  as  no  creditor  of  his  should  or  might  have  any  Iien"of 


Ch.  4)  RESTRAINTS   ON  ALIENATION  665 

claim  thereon  in  any  case,  or  the  same  be,  in  any  way,  subject  or  liable 
to  his  debts7"3isposition  or  engagements;  and,  in  case  he  should  marry 
and  leave  a  widow  him  surviving,  then,  after  his  decease,  to  pay  the 
interest  to  his  widow  during  her  life,  for  her  separate  use,  in  such  man- 
ner as  the  trustees  should  judge  proper:  and  Crosby  thereby  declared 
and  appointed  that  a  proportionate  part  of  the  interest  should  be  paid 
up  to  the  day  of  the  decease  of  J.  D.  Hepworth  and  his  widow ;  and 
that,  from  and  after  the  decease  of  him  or  his  widow,  the  £800  and  all 
savings  or  accumulations  of  interest,  if  any,  should  be  in  trust  for  his 
children  in  equal  shares,  with  benefit  of  survivorship  on  any  of  them 
dying  under  21 ;  but,  if  he  should  have  no  child  who  should  attain  21, 
then  one  moiety  of  the  £800,  and  all  savings  and  accumulations  of  in- 
terest, if  any,  should  be  upon  such  trusts,  &c.  as  Anne  Thompson 
should  appoint,  and,  in  default  of  appointment,  in  trust  for  her  abso- 
lutely ;  and  that  the  other  moiety  should  be  in  trust  for  Susannah  Hep- 
worth  absolutely :  and  the  trustees  were  empowered  to  apply  the 
interest  and  capital  of  the  shares  of  J.  D.  Hepworth's  children,  for  their 
maintenance  and  advancement  respectively. 

Crosby  died  in  October  1822.  In  April  1832  J.  D.  Hepworth  be- 
came bankrupt.  The  trustees  had  paid  or  applied  the  interest  of  the 
iSOO  to  him  or  to  his  use,  down  to  the  time  of  his  bankruptcy. 

The  bill  which  was  filed,  by  the  assignees,  against  the  bankrupt  and 
his  infant  children,  and  against  the  trustees  and  Anne  Thompson  and 
K:  Susannah  Hepworth,  prayed  that  the  plaintiffs  might  be  declared  to  be 
entitled  to  the  bankrupt's  life-interest  in  the  £800,  for  the  benefit  of  his 
creditors,  and  that  the  trustees  might  be  decreed  to  pay,  to  the  plain- 
tiffs, the  interest  of  the  £800  become  due  since  the  bankruptcy  and  to 
accrue  due  during  the  bankrupt's  life. 

The  defendants  put  in  a  general  demurrer. 

The;  Vice-ChancelIvOR  [Sir  Lancelot  Shadwell].  It  is  plain 
that  the  grantor  did  intend  to  exclude  the  assignees :  and  that  object 
might  have  been  effected  if  there  had  been  a  clear  gift  over. 

Tjut  the  question  is  whether  there  is  anything  in  the  deed  that  amounts 
to  a  direction  that  the  trustees  shall  withhold  the  payment  of  the  in- 
terest and  accumulate  it,  during  the  lifetime  of  J.  D.  Hepworth,  if 
they  shall  think  fit.  Although  the  words  :  "savings  and  accumulations," 
as  they  first  occur,  might  bear  that  construction ;  yet  taking  the  whole 
of  the  instrument  together,  I  think  that  the  better  construction  is  that 
those  words  do  not  enable  the  trustees  to  withhold  and  accumulate  any 
portion  of  the  interest  during  the  life  of  J.  D.  Hepworth. 

Declare  that  the  plaintiffs  are  entitled  to  the  bankrupt's  life-interest 
in  the  £800. 


G66  ILLEGAL  CONDITIONS  AND   RESTRAINTS  ("Part  5 

LORD  V.  BUNN. 
(Court  of  Chancery,  1843.    2  Yoiinge  &  C.  Ch.  Cas.  9S.) 

By  an  indenture  of  settlement  dated  the  30th  March,  1822,  Thomas 
Lord  duly  appointed  and  conveyed  a  freehold  messuage  and  lands  situ- 
ate in  the  Edgeware-road  to  Alathew  Norton  and  David  Henderson 
and  their  heirs,  upon  trust  for  the  settlor  for  his  life,  with  remainder  to 
his  wife  for  her  life,  and  after  the  decease  of  the  survivor  of  them  upon 
trust  to  pay  or  permit  Thomas  Lord,  the  son  of  the  settlor,  to  receive 
the  clear  rents  and  profits  of  the  premises  for  his  life  ;  provided  always 
that,  in  case  any  commission  of  bankrupt  should  be  issued  against  the 
said  Thomas  Lord  the  son,  whereupon  he  should  be  found  or  declared 
a  bankrupt,  or  in  case  he  should  make  any  composition  with  his  cred- 
itors for  the  payment  of  his  debts,  though  a  commission  of  bankrupt 
should  not  issue,  or  should  make  any  conveyance  of  his  estate  and 
effects  for  the  benefit  of  his  creditors,  or  should  be  discharged  under 
any  insolvent  or  other  Act  or  Acts  of  Parliament  then  already  or  there- 
after to  be  made  or  passed  for  the  relief  or  benefit  of  insolvent  debtors, 
then  and  in  such  case  nothwithstanding  the  trusts  aforesaid  they  the 
said  trustees,  their  heirs  or  assigns,  should,  during  the  life  of  the  said 
Thomas  Lord  the  son  (subject  to  the  life  estates  of  the  said  Thomas 
Lord  the  settlor  and  Amelia  Elizabeth  his  wife),  stand  and  be  possessed 
of  the  said  hereditaments  and  premises  upon  trust  to  apply,  lay  out, 
and  expend  the  clear  surplus  rents,  issues  and  profits  thereof  in  and 
towards  the  maintenance,  clothing,  lodging  and  support  of  the  said 
Thomas  Lord  the  son,  and  his  then  present  or  any  future  wife,  and 
his  children,  or  any  of  them,  or  otherwise  for  his,  her,  their  or  any 
of  their  use  and  benefit,  in  such  manner  as  they  the  said  trustees,  or  the 
survivor  of  them,  or  the  heirs  or  assigns  of  the  survivor,  should  in 
their  or  his  discretion  think  proper;  and  from  and  immediately  after 
the  decease  of  the  survivor  of  them  the  said  Thomas  Lord  the  set- 
tlor, and  Amelia  Elizabeth  his  wife,  and  Thomas  Lord  the  son,  upon 
trust  that  they  the  said  trustees,  their  heirs  and  assigns,  should,  during 
the  life  of  the  widow  of  the  said  Thomas  Lord  the  son,  if  he  should 
leave  any,  pay,  apply  and  dispose  of  the  surplus  of  the  said  rents,  is- 
sues and  profits  unto  such  person  or  persons,  and  for  such  intents  and 
purposes  as  any  such  widow,  notwithstanding  any  future  coverture, 
should  from  time  to  time  (but  not  by  way  of  anticipation)  by  any  writ- 
ing, as  therein  mentioned,  under  her  signature  appoint;  and  in  de- 
fault of  such  appointment,  into  her  own  proper  hands  for  her  sole 
and  separate  use ;  her  receipts  to  be  sufficient  discharges :  and  from 
and  immediately  after  the  decease  of  the  survivor  of  them,  the  said 
Thomas  Lord  the  settlor,  and  Amelia  Elizabeth  his  wife,  and  the  said 
Thomas  Lord  the  son,  and  his  widow,  if  he  should  leave  a  widow,  upon 
trust  for  all  and  every  the  children  of  the  said  Thomas  Lord  the  son. 


Ch.  4)  RESTRAINTS   ON   ALIENATION  667 

who  being  a  son  or  sons  should  Hve  to  attain  the  age  of  twenty-one 
years,  or  who  being  a  daughter  or  daughters  should  live  to  attain 
that  age  or  be  married,  which  should  first  happen,  in  equal  shares 
and  proportions,  if  more  than  one,  as  tenants  in  common  and  not  as 
joint  tenants,  and  for  their  several  and  respective  heirs  and  assigns 
forever;  and  in  case  there  should  be  but  one  such  child,  then  upon 
trust  for  such  one  or  only  child,  his  or  her  heirs  and  assigns  for- 
ever. 

By  an  indenture  bearing  even  date  with  the  preceding  indenture, 
certain  leasehold  property  situate  in  the  New  Road  was  duly  assigned 
by  Thomas  Lord,  the  settlor,  to  the  same  trustees,  their  executors,  ad- 
ministrators, and  assigns,  to  hold  upon  trusts  similar  to  those  declared 
by  the  before-mentioned  indenture,  allowing  for  the  difference  of  ten- 
ure of  the  respective  properties. 

Thomas  Lord  the  settlor,  and  Amelia  Elizabeth  his  wife,  died  many 
years  since,  leaving  Thomas  Lord,  the  son,  surviving  them.  Thomas 
Lord,  the  son,  married,  and  had  several  children. 

The  original  trustees,  undeT  the  indentures  of  settlement,  having  been 
discharged  from  their  trusts,  two  persons,  named  respectively  Bunn  and 
Burgoyne,  were  duly  appointed  trustees  in  their  room. 

Some  time  after  the  Stat.  1  &  2  Vict.  c.  110  came  into  operation, 
Thomas  Lord,  the  son,  was  committed  to  the  Queen's  Bench  prison, 
charged  in  execution  for  debt,  at  the  suit  of  one  Silver.  Satisfaction 
not  having  been  made  for  the  debt  within  twenty-one  days  after  such 
committal,  application  in  pursuance  of  the  above-mentioned  Act  was 
made  by  the  creditor  to  the  Court  for  Relief  of  Insolvent  Debtors  for 
the  usual  vesting  order,  and  such  order  was  accordingly  made  in 
July,  1841.  Silver  was  a  few  months  afterwards  appointed  by  the 
Insolvent  Debtors'  Court  assignee  of  the  estate  and  effects  of  the 
insolvent. 

The  trustees  having,  under  these  circumstances,  refused  to  pay  to 
any  person  the  rents  and  profits  of  the  property  comprised  in  the  in- 
dentures of  settlement,  a  bill  was  filed  in  January,  1842,  by  the  children 
of  the  insolvent,  one  of  whom,  a  daughter,  had  attained  her  age  of 
twenty-one,  and  the  insolvent's  wife,  the  mother  of  those  children, 
against  the  trustees,  the  assignee  under  the  Insolvent  Act  (Silver),  and 
the  insolvent,  praying  that  the  trusts  of  the  indentures  of  settlement 
might  be  carried  into  execution,  the  rights  of  all  parties  therein  ascer- 
tained, and  the  rents  and  profits  secured. 

By  an  order  of  the  Insolvent  Debtors'  Court,  dated  the  19th  May, 
1842,  the  Insolvent,  having  duly  complied  with  the  provisions  of  the 
75th  section  of  the  Statute  1  &  2  Vict.  c.  110,  was  discharged  from 
custody ;  and  the  fact  of  such  discharge  was  brought  before  this  court 
by   supplemental  bill. 

The  cause  now  came  on  for  hearing,  the  principal  question  being  as 
to  the  manner  in  which  the  rents  and  profits  of  the  settled  property 


GG8  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  5 

were  to  be  disposed  of  during  the  lifetime  of  Thomas  Lord,  the  son, 
from  the  time  of  his  insolvency. 

The  Vicd-Chancellor  [Sir  J.  L.  Knight  Bruce].  According 
to  my  construction  of  the  instruments  and  the  Act  of  Parliament,  the 
right  of  those  who  were  to  take  in  substitution  for  the  husband's  life 
estate,  does  not  arise  till  the  actual  discharge  of  the  husband  under 
the  Insolvent  Act.  The  rents  of  the  property,  therefore,  until  such 
discharge,  formed  part  of  the  husband's  estate,  and  belong  to  his  as- 
signee. 

It  has  been  admitted  on  the  part  of  the  assignee,  and  the  admission 
must  be  entered  by  the  registrar,  that  what  was  required  under  the  Act 
of  Parliament  to  be  done  to  obtain  the  order  of  the  19th  May,  1842, 
was  done,  and  that  thereupon  Thomas  Lord  obtained  his  discharge. 
That  being  admitted,  I  am  of  opinion,  that  the  trust  from  the  time  of 
the  discharge  took  effect  in  favor  of  the  husband,  wife,  and  children,  or 
some  of  them. 

With  regard  to  the  question  which  has  been  agitated,  whether  the 
discretionary  power  created  by  the  settlement  yet  remains  in  the  trus- 
tees, I  am  of  opinion  that  it  does.  In  the  first  place,  I  think  that,  upon 
the  true  construction  of  the  whole  settlement  together,  the  meaning  to 
be  collected  is,  that  a  discretion  was  to  be  vested  in  the  trustees  of  the 
settlements  for  the  time  being.  It  would,  I  think,  be  haesio  in  litera  if 
I  were  to  hold  otherwise.  Assuming  that  these  trustees  were  duly  ap- 
pointed in  the  room  of  the.  former  trustees,  I  think  that  the  discretion- 
ary power  created  by  the  settlements  is  vested  in  them.  It  has  been 
suggested,  that,  as  one  of  the  objects  who  are  to  take  in  default  of  the 
execution  of  the  power,  has  become  an  insolvent,  the  discretionary 
power  is  gone.  I  apprehend,  however,  that  the  discretionary  power  has 
not  gone  from  the  trustees.  If  an  individual  have  a  power  over  an  es- 
tate, which  estate,  in  default  of  execution  of  the  power,  is  vested  in 
others — as,  if  the  person  having  the  power  be  A.,  and  the  persons  to 
take  in  default  of  execution  be  B.  and  C,  it  is  immaterial  in  the  con- 
sideration of  A.'s  right  to  execute  the  power,  what  may  have  become 
of  the  interest  of  B.  and  C,  because  it  is  a  mere  defeasible  interest. 
The  assignee  can  only  take  such  defeasible  interest  as  the  bankrupfhad. 
No  authority  has  been  stated  to  me  which  seems  to  have  proceeded 
upon  a  contrary  notion,  and  I  think  that  the  trustees  have  a  right  under 
the  power  to  appoint  in  favor  of  the  insolvent  and  his  wife,  or  in  favor 
of  the  children,  or  any  of  them,  with  or  without  the  insolvent  and  his 
wife  or  either  of  them, 

I  am  also  of  opinion  upon  these  settlements  (without  saying  what 
might  be  done  under  other  settlements),  that  any  benefit  which  the 
bankrupt  may  take  will  belong  to  his  assignee. 


Ch.  4)  RESTRAINTS  ON  ALIENATION  6G9 

YOUNGHUSBAND  v.  GISBORNE. 
(Court  of  Chancery,  1844.     1  Coll.  400.) 

Francis  Duckinfield,  by  his  will,  dated  the  17th  June,  1823,  gave 
certain  real  estates  to  trustees,  upon  trust  to  levy  and  raise  yearly, 
during  the  life  of  his  brother  John  .William  Astley,  one  annuity  or 
yearly  sum  of  £400;  and,  in  case  of  his  death  in  the  interval  between 
any  of  the  days  therein  mentioned  for  payment  thereof,  then  a  propor- 
tional part  thereof  up  to  the  time  of  death.  And  he  directed,  that  the 
annuity  and  proportional  part  aforesaid  should  be  held  by  his  said 
trustees,  upon  trust  for  the  personal  support,  clothing,  and  mainte- 
nance of  his  said  brother,  so  as  not  to  be  subject  or  liable  to  the  claims 
of  any  person  or  persons  to  whom  he  should  attempt  to  charge,  antici- 
pate, or  otherwise  encumber  the  same,  nor  to  his  creditors  under  a 
commission  of  bankruptcy  or  any  Act  for  the  relief  of  insolvent  debt- 
ors, or  to  his  own  control,  contracts,  debts,  or  other  engagements. 
And  the  testator  declared,  that  the  said  annuity  should  be  paid  to  his 
said  brother  himself  from  time  to  time,  when  and  after  the  same 
should  become  due,  until  he  should  attempt  to  charge,  anticipate,  or 
otherwise  encumber  the  same,  or  until  any  other  person  or  persons 
might  claim  the  same ;  and  from  and  after  such  attempt  or  claim,  the 
same  should  be  applied  by  his  said  trustees,  or  some  person  under 
their  direction,  for  or  towards  the  personal  support,  clothing,  and 
maintenance  of  his  said  brother,  and  for  no  other  purpose  whatsoever. 

The  testator  died  in  July,  1835,  and  the  trustees  duly  paid  the  an- 
nuity to  John  William  Astley  up  to  the  25th  December,  1841. 

On  the  31st  of  May,  1842,  John  William  Astley  took  the  benefit  of 
the  Insolvent  Debtors  Act,  and  the  plaintiffs,  as  his  assignees,  institut- 
ed this  suit  for  the  purpose  of  obtaining  the  annuity. 

The  VicE-Chancellor  [Sir  J.  L.  Knight  Bruce].  I  wish  to 
be  understood  as  not  giving  any  opinion,  whether  the  two  cases  cited 
by  Mr.  Beales  are,  or  are  not,  materially  distinguishable  from  the 
present.  If  they  are  not  so,  then  I  must  respectfully  dissent  from 
them.  In  the  present  case,  I  must  say  that  I  have  no  doubt.  There 
is  no  clause  of  forfeiture,  no  clause  of  cesser,  no  limitation  over.  It  is 
merely  a  wordy  trust  for  the  benefit  of  the  insolvent,  attempted  to  be 
guarded  from  alienation,  but  vainly  and  ineffectijally. 

Considering  the  language  of  the  will  and  the  state  of  the  authorities, 
I  think  it  reasonable  that  the  costs  should  be  paid  out  of  the  fund.^ 

2  Cf.  Bland  v.  Bland,  90  Ky.  400,  14  S.  W.  423,  9  L.  R.  A.  599,  29  Am. 
St.  Kep.  390  (1890). 


G70  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  5 

In  re  COLEIMAN. 
(Court  of  Chancery,  1SS8.    39  Ch.  Div.  443.) 

Alfred  Coleman,  by  will  dated  the  5th  of  August,  1875,  gave  his 
residuary  estate  to  trustees  upon  trust  to  pay  the  income  to  his  wife 
during  widowhood,  "but  in  the  eyent  of  her  death  or  second  marriage 
then  I  direct  my  said  trustees  to  apply  such  rents,  interest,  dividends, 
and  annual  proceeds  in  and  towards  the  maintenance,  education,  and 
advancement  of  my  children  in  such  manner  as  they  shall  deem  most 
expedient  until  the  youngest  of  my  said  children  attains  the  age  of 
twenty-one  years,  and  on  his  or  her  attaining  that  age  then  I  direct  my 
said  trustees  to  distribute  the  whole  of  my  said  estate  between  my  said 
children  in  such  shares  and  proportions  as  my  said  wife,  if  then  Uving, 
shall  by  deed  or  will  appoint,  or  if  dead,  then  equally  between  all  my 
children  then  living,  the  shares  of  any  females  to  be  for  their  sole  and 
separate  use  and  free  from  the  control,  debts,  or  engagements  of  any 
husband." 

The  testator  died  on  the  17th  of  May,  1880,  leaving  a  wife  and  four 
children.  The  widow  died  in  May,  1884,  without  exercising  the  power 
of  appointment.  At  her  death  two  of  the  children,  of  whom  John  Soy 
Coleman  was  the  eldest,  had  attained  twenty-one.  The  other  two 
were  minors  at  the  time  of  these  proceedings,  the  youngest  being  in 
the  seventh  year  of  his  age  at  the  widow's  death. 

On  the  13th  of  April,  1886,  John  Soy  Coleman,  who  was  resident  in 
Australia,  sold  and  assigned  absolutely  to  David  Henry  "all  and  singu- 
lar the  part  or  share,  and  all  the  income,  property,  moneys,  securities, 
estates,  and  interests  to  which  the  said  J.  S.  Coleman  was  or  is  entitled 
to,  or  which  he  may  at  any  time  hereafter  become  entitled  to  under  the 
said  will  of  his  said  father,  the  said  Alfred  Coleman,  deceased,  or  in 
any  other  manner  howsoever  by  reason  of  his  decease,  and  all  stocks, 
funds,  and  securities  in  or  upon  which  the  same,  or  any  part  thereof, 
were  or  are,  or  is  now,  or  shall  or  may  at  any  time  hereafter  be  invest- 
ed, and  all  interest  to  become  due  in  respect  thereof." 

From  the  death  of  the  widow  the  trustees  had  applied  the  income  in 
equal  shares  for  the  benefit  of  the  four  children,  paying  one-fourth 
directly  to  each  of  the  two  adults.  In  June,  1886,  formal  notice  of  the 
above  assignment  was  given  to  the  trustees,  with  a  request  by  D.  Hen- 
ry and  by  J.  S.  Coleman  that  the  payments  might  thenceforth  be  made 
to  Henry.  The  trustees  were  advised  not  to  make  any  further  pay- 
ments in  respect  of  J.  S.  Coleman  without  the  sanction  of  the  court. 
They  continued  to  apply  three-fourths  of  the  income  for  the  benefit  of 
the  children  other  than  J.  S.  Coleman,  and  kept  the  remaining  fourth 
in  hand. 

In  March,  1887,  Henry  took  out  an  originating  summons  to  have  it 
decided  whether  the  gift  of  capital  to  the  children  was  contingent  on 
their  being  alive  at  the  period  of  distribution,  and  if  so,  whether  J,  S. 


Ch.  4)  RESTRAINTS   ON   ALIENATION  671 

Coleman  had  an  interest  in  the  income  which  would  pass  by  his  as- 
signment. 

The  summons  were  heard  before  IMr.  Justice  North  on  the  8th  of 
February,  1888. 

Everitt,  O.  C,  and  Clayton,  for  Henry:  There  is  a  complete  trust 
for  the  benefit  of  a  person  sui  juris,  the  benefit  of  that  is  capable  of 
assignment  notwithstanding  that  the  trustees  here  are  under  the  terms 
to  apply  the  subject  of  the  trust  themselves:  Rippon  v.  Norton,  2 
Beav.  63 ;  Green  v.  Spicer,  1  Russ.  &  'My.  395 ;  Kearsley  v.  Wood- 
cock, 3  Hare,  185 ;  Younghusband  v.  Gisborne,  1  Coll.  400.  Here 
the  trustees  have  in  effect  appropriated  the  income  of  three  quarters  to 
three  of  the  children,  and  one  quarter  to  J.  S.  Coleman ;  if  appropria- 
tion is  required  to  complete  the  title  of  the  assignee  nothing  more  can 
be  necessary  than  what  has  been  done. 

North,  J.  I  think  here  the  trust  created  was  a  good  trust,  and  that 
the  assign,  until  the  youngest  child  attains  the  age  of  twenty-one,  is 
not  entitled  to  have  anything  paid  over  to  him. 

I  am  asked,  on  the  authority  of  certain  cases,  to  deal  with  the  ques- 
tion as  if  there  had  been  a  separate  single  trust  for  one  person,  but  I 
think  the  cases  referred  to  have  nothing  whatever  to  do  with  the  pres- 
ent. In  Kearsley  v.  Woodcock  and  Younghusband  v.  Gisborne  there 
was  a  trust  for  the  benefit  of  the  persons  entitled,  and  that  being  so, 
there  was  an  interest  which  passed  to  the  assignees.  The  present  case 
seems  to  me  entirely  distinct.  Here  there  is  a  gift  after  the  death  or 
the  second  marriage  of  the  widow,  in  these  words,  "to  apply  such 
rents,  dividends,  interest,  and  annual  proceeds  in  and  towards  the 
maintenance,  education  and  advancement  of  my  children  in  such  man- 
ner as  they  shall  deem  most  expedient,  until  the  youngest  of  my  said 
children  attains  the  age  of  21  years,"  and  then  there  is  a  trust  for  di- 
vision, W'hen  that  time  comes,  among  those  who  are  living  at  that  time. 
It  seems  to  me  there  is  a  trust  there  under  which  the  trustees  mav,  if 
they  like,  exclude  one  person  altogether;  and  they  certainly  have 
power,  if  they  please,  to  apply  unequal  portions  of  the  income  for  the 
maintenance  of  the  children  as  they  may  deem  necessary  or  desirable. 
There  is  a  trust  to  do  this  in  such  manner  as  they  shall  deem  most 
expedient,  and  "most  expedient"  means  most  for  the  benefit  of  the 
children  for  whose  benefit  the  income  is  to  be  applied.  In  my  opinion 
it  is  necessary  to  apply  the  rents  for  these  children's  benefit,  and  if  the 
trustees  think  it  expedient  to  apply  more  for  a  daughter  than  a  son,  or 
more  for  an  elder  child  than  for  a  younger  child,  it  is  in  their  discretion 
to  do  so,  and  in  such  manner  as  is  most  expedient. 

There  are  some  observations  of  Vice-Chancellor  Shadwell  in  the 
case  of  Godden  v.  Crowhurst,  10  Sim.  642,  656,  which  seem  to  me  to 
apply.  He  says :  "Then  the  property  is  given  for  'the  maintenance 
and  support  of  my  said  son,  and  any  wife  and  child  or  children'  (which 


672  ILLEGAL  CONDITIONS  AND  RESTRAINTS  (Part   5 

is  the  event  that  has  happened)  'he  may  have,  and  for  the  education  of 
such  issue  or  any  of  them,  as  they,  my  said  trustees  for  the  time  being, 
shall,  in  their  discretion,  think  fit.'  Now  there  is  nothing,  in  point  of 
law,  to  invalidate  such  a  gift,  that  I  am  aware  of.  It  does  not  follow 
that  anything  was,  of  necessity,  to  be  paid ;  but  the  property  was  to  be 
applied ;  and  there  might  have  been  a  maintenance  of  the  son,  and  of 
the  wife  and  of  the  children,  without  their  receiving  any  money  at  all. 
For  instance,  the  trustees  might  take  a  house  for  their  lodging,  and 
they  might  give  directions,  to  tradesmen,  to  supply  the  son  and  the 
wife  and  the  children  with  all  that  was  necessary  for  maintenance; 
and,  therefore,  my  opinion  is  that  I  am  not  at  liberty  to  take  this  as  a 
mere  gift  for  the  benefit  of  the  son,  simply;  but  it  is  a  gift  for  his 
benefit  in  the  shape  of  maintenance  and  support  of  himself  jointly  with 
his  wife  and  children,  and,  if  that  is  the  true  construction  of  the  gift 
in  question,  the  result  is  that  the  assignees  are  not  entitled  to  any- 
thing ;  but  the  consequence  is  that,  if  the  trust  was  a  perfect  trust  for 
accumulation,  for  the  second  period,  the  whole  of  the  accumulated 
fund  will,  at  the  end  of  that  period,  be  applicable  for  the  maintenance 
and  support  of  the  son,  the  wife  and  the  children  collectively,  and  the 
assignees  have  no  interest  at  all." 

Under  these  circumstances  I  am  of  opinion  that  the  assign  is  not 
entitled  to  call  upon  the  trustees  to  hand  over  to  him  the  one-fourth 
share  of  the  income.  It  is  said  that  it  has  been  appropriated  to  the 
share  of  the  son.  I  do  not  so  understand  from  the  evidence.  There 
is  no  dispute  about  the  application  of  three-fourths  of  the  income. 
That  has  been  applied  for  the  benefit  of  the  persons  as  to  whose  in- 
terest there  is  no  dispute,  who  haye  not  assigned,  but  inasmuch  as  a 
question  has  been  raised  as  to  anything  that  may  be  coming  to  the 
son,  who  has  assigned,  that  money  has  been  very  properly  and  wisely 
kept  in  hand  until  that  dispute  has  been  settled. 

Under  these  circumstances  it  seems  to  me  that  there  is  a  good  and 
valid  trust  to  apply  such  part  of  the  income  as  the  trustees  may  think 
fit  for  the  maintenance,  education,  and  advancement  of  the  children 
(including  the  son  in  question,  if  they  think  it  expedient).  Then  I 
think  this  further  follows — if  they  in  the  exercise  of  tliat  discretion 
appropriate  a  part  of  it  to  him  for  his  benefit,  and  propose  to  apply  it 
for  his  benefit  by  handing  it  over  to  him,  I  think  that  would  be  an  in- 
terest which  would  pass  by  the  assignment,  but  if,  instead  of  doing 
that,  they  think  fit  to  apply  it  in  some  other  way  for  his  benefit,  then  in 
my  opinion  the  assignee  does  not  take  the  benefit  of  that  provision  by 
way  of  maintenance,  or  whatever  it  is,  at  all. 

The  order  as  drawn  up  declared  that  no  child  of  the  testator  is  en- 
titled, prior  to  the  time  when  the  youngest  of  his  children  attains  the 
age  of  twenty-one  years,  to  payment  of,  or  has  a  transmissible  interest 
in,  one-fourth  share  or  any  part  of  the  income  of  the  residuary  estate  of 


Ch.  4)  RESTRAINTS   ON  ALIENATION  673 

the  said  A.  Coleman,  or  the  proceeds  thereof,  and  that  the  plaintiff  has 
no  claim,  present  or  future,  prior  to  that  event,  against  the  trustees  of 
the  will  of  the  said  A.  Coleman  for  income,  and  that  the  trustees  are 
entitled  to  employ  the  income  for  the  benefit  and  maintenance  of  the 
children,  including  the  said  J.  S.  Coleman,  at  their  absolute  discretion. 

Henry  appealed  from  this  decision.  The  appeal  was  heard  on  the 
10th  of  August,  1888. 

Everitt,  Q.  C,  and  Clayton,  for  the  appellant:  We  say  that  each 
child  takes  a  vested  interest  in  one-fourth  of  the  income,  and  whatever 
comes  in  the  w^ay  of  property  to  an  adult  who  is  sui  juris  can  be  as- 
signed. In  Rippon  v.  Norton,  2  Beav.  63,  under  a  very  similar  trust 
to  the  present,  the  assignee  in  insolvency  of  one  of  the  beneficiaries 
was  held  entitled  to  an  aliquot  share. 

[Cotton,  L.  J.    That  case  does  not  help  us,  for  no  reasons  are  given. 

Fry,  ly.  J.    I  do  not  see  my  way  to  supporting  the  decision.] 

In  Lord  V.  Bunn,  2  Y.  &  C.  (Ch.)  98,  it  was  held  that  the  trustees 
had  a  discretion,  and  they  had  a  power  of  excluding  any  of  the  objects 
of  the  trust,  but  that  so  far  as  the  insolvent  took  anything  it  would  go 
to  his  assignee. 

[Thd  Court  here  intimated  a  doubt  whether  more  was  meant  than 
that  whatever  interest  the  insolvent  had  if  the  trustees  did  not  exercise 
any  discretion  would  go  to  the  assignee.] 

In  Godden  v.  Crowhurst,  10  Sim.  642,  the  power  was  not  exclusive, 
but  the  provision  was  for  a  man  and  his  wife  and  children,  who  were 
all  living  together,  and  it  was  held  that  the  man's  assignee  in  bank- 
ruptcy was  not  entitled  to  anything,  but  this  was  on  the  ground  that 
the  provision  was  not  severable.  In  Twopeny  v.  Peyton,  Ibid.  487, 
the  trustees  had  power  not  to  give  the  bankrupt  anything,  and  on  that 
ground  his  assignees  could  not  take.  In  Younghusband  v.  Gisborne,  1 
Coll.  400,  a  trust  of  income  for  the  support,  clothing,  and  maintenance 
of  an  adult  was  held  to  be  a  trust  for  his  benefit,  and  to  entitle  his  as- 
signee in  bankruptcy  to  the  income.  In  this  case  Godden  v.  Crowhurst 
and  Twopeny  v.  Peyton  were  disapproved  of.  There  cannot  be  an 
inalienable  provision  for  an  adult  sui  juris. 

[Fry,  L,.  J.  Suppose  a  person  elected  as  an  inmate  to  an  almshouse 
with  an  allowance  of  provisions.] 

That  is  not  property  coming  under  a  deed  or  will.  In  Green  v. 
Spicer,  1  Russ.  &  My.  395,  where  there  was  no  power  to  apply  other- 
wise than  for  the  benefit  of  one  person,  the  manner  only  being  left  dis- 
cretionary, the  income  was  held  to  pass  to  the  assignee  in  insolvency. 
In  Hayes's  Conveyancing,  5th  ed.  vol.  i.  p.  506,  it  is  stated  that  some 
conveyancers  had  thought  that  there  could  be  an  inalienable  trust  for 
the  personal  maintenance  of  a  person  sui  juris,  but  the  cases  to  which 
he  refers  show  that  there  must  be  a  power  to  give  the  property  to  some 
one  else  or  it  will  pass  to  an  assignee.  The  policy  of  the  law  is  against 
4  Kales  Pkop. — 43 


G74  ILLEGAL   CONDITIONS  AND   RESTRAINTS  (Part  5 

inalienable  trusts.  To  allow  maintenance  to  be  inalienable  would  be 
against  the  policy  of  the  law  :  Tudor's  Leading  Cases  on  Real  Property, 
3d  ed.  p.  978. 

Decimus  Sturges,  for  the  infant  children :  The  order  does  not  seem 
to  be  happily  worded,  for  a  transmissible  interest  there  certainly  is, 
though  only  a  contingent  one.  The  case  I  make  is  this,  that  the  as- 
signor has  no  present  property  under  the  will,  his  interest  in  the  capital 
is  contingent,  and  until  the  youngest  child  attains  twenty-one  the  in- 
come is  held  by  the  trustees  upon  trust  to  apply  it  for  the  benefit  of 
the  children  as  they  think  fit,  so  that  no  child  is  entitled  to  anything 
but  what  the  trustees  choose  to  give  him.  This  is  not  like  the  cases 
where  there  was  a  vested  gift  with  a  discretionary  power  to  take  it 
away,  still  less  is  it  like  cases  where  there  was  a  gift  with  a  discretion 
as  to  the  mode  of  its  application. 

[Fry,  L.  J.  An  assignment  for  value  of  whatever  A.  B.  may  take 
under  the  will  of  C.  D.,  who  is  still  living,  passes  whatever  A.  B.  ulti- 
mately takes  under  the  will  of  C.  D.  Why  may  not  this  assignment 
pass  whatever  J.  S.  Coleman  may  take  under  the  exercise  of  the  dis- 
cretion of  the  trustees?] 

I  do  not  dispute  that  if  the  trustees  pay  him  anything  it  would  pass 
by  the  assignment,  and  that  the  payment  therefore  would  be  made  to 
the  wrong  person,  but  I  contend  that  the  trustees  might  apply  it  for 
his  benefit  in  other  ways  without  being  interfered  with,  e.  g.  in  paying 
his  bills.  The  case,  I  submit,  is  covered  by  authority :  Godden  v. 
Crowhurst;  Wallace  v.  Anderson,  16  Beav.  533.  The  cases  cited 
against  me  do  not  affect  my  position.  Lord  v.  Bunn  only  decides  that 
the  assignee  takes  whatever  the  trustees  determine  to  give  to  the  as- 
signor. 

[Fry,  L.  J.     Should  you  be  satisfied  with  the  following  declarations: 

1.  That  no  child  is  entitled  prior  to  the  attainment  of  twenty-one  by 
the  youngest  of  the  testator's  children  to  the  payment  of  any  part  of 
the  income  of  the  residuary  estate. 

2.  That  the  trustees  are  entitled  to  apply  the  said  income  for  the 
maintenance,  education,  or  advancement  of  the  children,  including  J. 
S.  Coleman,  in  their  absolute  discretion. 

3.  That  the  plaintiff  is  entitled  to  no  interest  in  the  said  income  ex- 
cept such  moneys  or  property,  if  any,  as  may  be  paid  or  delivered,  or 
appropriated  for  payment  or  delivery  by  the  trustees  to  the  said  J.  S. 
Coleman.] 

I  should  be  satisfied  with  those  declarations. 

Page,  for  the  trustees :  We  wish  it  to  be  decided  whether  we  can 
send  out  goods  to  J.  S.  Coleman,  and  I  submit  that  we  may.  Where 
a  gift  of  income  is  for  the  benefit  of  the  whole  class  with  a  discretion 
how  it  is  to  be  applied,  it  has  never  been  held  that  members  of  the 
class  take  a  vested  interest. 


Ch.  4)  RESTRAINTS   ON  ALIENATION  675 

[Fry,  ly.  J.  A  man  may  assign  what  he  has  not  got,  and  the  assign- 
ment becomes  effectual  if  he  gets  it.  If  you  send  out  goods  to  J.  S. 
Coleman,  why  should  not  his  assignee  take  them?] 

No  case  goes  so  far  as  to  make  an  assignment  operate  on  what  trus- 
tees may  in  their  discretion  allot  to  one  of  the  objects  of  the  trust : 
In  re  Clarke,  36  Ch.  D.  348 ;  Official  Receiver  v.  Tailby,  18  Q.  B.  D. 
25 ;  13  App.  Gas.  523.  The  interest  of  J.  S.  Coleman  in  the  capital 
is  contingent:  Hilliard  v.  Fulford,  42  L.  J.  (Ch.)  624;  and  In  re  Park- 
er, 16  Ch.  D.  44,  is  against  vesting  by  reason  of  such  a  trust  for  main- 
tenance as  this. 

Clayton,  in  reply.  In  In  re  Parker  the  trust  was  to  apply  the  in- 
come or  such  part  thereof  as  the  trustees  should  think  fit — here  the 
trust  is  to  apply  the  whole  income. 

Cotton,  L.  J.  This  is  an  appeal  from  an  order  of  Mr.  Justice  North, 
and  we  think  that  some  alteration  in  its  terms  is  requisite.  The  con- 
tention of  the  appellant  was  that  each  of  the  four  children  took  a  vested 
interest  in  one-fourth  of  the  income  till  the  youngest  child  attained 
twenty-one.  I  am  of  opinion  that  no  child  has  a  right  to  any  share 
of  the  income.  The  trustees  have  a  discretion  to  apply  the  income  for 
the  maintenance  of  the  children  in  such  manner  as  they  think  fit.  This 
excludes  the  notion  of  the  children  being  entitled  to  aliquot  shares.  I 
will  assume,  though  I  do  not  decide,  that  the  trustees  have  no  power 
to  exclude  a  child,  but  I  am  clearly  of  opinion  that  under  this  power 
they  could  make  unequal  allowances  for  the  benefit  of  the  children,  and 
might  allow  only  half-a-crown  to  one  of  them.  This  is  not  a  void  at- 
tempt to  make  shares  given  to  children  inalienable,  so  as  to  exclude 
their  creditors,  it  is  a  power  to  the  trustees  to  give  to  each  child  what 
they  think  fit,  and  if  they  cannot  altogether  exclude  a  child  who  has 
become  bankrupt  or  assigned  his  interest,  they  can  allot  to  him  as 
little  as  they  think  desirable.  Then  does  the  assignment  include  every 
benefit  which  the  trustees  give  to  J.  S.  Coleman  out  of  the  income? 
I  think  not.  If  the  trustees  were  to  pay  an  hotel-keeper  to  give  him  a 
dinner  he  would  get  nothing  but  the  right  to  eat  a  dinner,  and  that  is 
not  property  which  could  pass  by  assignment  or  bankruptcy.  But  if 
they  pay  or  deliver  money  or  goods  to  him,  or  appropriate  money  or 
goods  to  be  paid  or  delivered  to  him,  the  money  or  goods  would  pass 
by  the  assignment.  I  think  that  the  declaration  proposed  by  Lord  Jus- 
tice Fry  is  right,  and  I  am  of  opinion  that  the  trustees  will  not  be  at 
liberty  to  send  over  money  or  goods  to  J.  S.  Coleman. 

The  strongest  cases  referred  to  by  the  counsel  of  the  appellant  were 
Green  v.  Spicer  and  Younghusband  v.  Gisborne,  but  in  these  cases 
the  income  was  directed  to  be  applied  solely  for  the  benefit  of  the  in- 
solvent, which  made  it  his  property,  and  an  attempt  was  then  made  to 
prevent  its  being  dealt  with  as  his  property  if  he  became  bankrupt. 
Here  no  property  is  given  to  J.  S.  Coleman,  but  only  a  discretion  to  the 
trustees  to  apply  such  part  as  they  think  fit  of  the  income  for  his  bene- 


676  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  5 

fit.  This  case,  therefore,  does  not  come  within  the  principle  of  those 
cases,  and  I  think  tliat  the  declaration  proposed  by  the  Lord  Justice 
Fry  is  right. 

Fry  and  Lopes,  L.  JJ.,  concurred.^ 


TILLINGHAST  v.  BRADFORD. 
(Supreme  Court  of  Rhode  Island,  1858.    5  R.  I.  205.) 

Demurrer  to  a  bill  in  equity,  filed  by  the  plaintiff  as  assignee,  under 
the  "Poor  Debtor's  Act,"  of  Hezekiah  Sabin  the  younger,  against  him, 
and  against  Nicholas  H.  Bradford,  trustee  under  the  will  of  Hezekiah 
Sabin,  Sen.,  of  certain  real  estate  situated  in  Westminster  Street  in 
Providence,  held  by  said  Bradford  in  trust  for  the  benefit  of  said  Heze- 
kiah the  younger. 

The  bill,  in  substance,  set  forth  the  will  of  Hezekiah  Sabin,  Sen.,  of 
the  date  of  February  6,  1853,  and  his  subsequent  death  ;  and  it  appear- 
ed, that  in  and  by  said  will,  the  testator  devised  a  certain  undivided 
share  of  the  real  estate  in  question  to  Charles  F.  Tillinghast,  Esq. — 
whose  successor  in  the  trust  Bradford  was  stated  to  be, — "In  trust,  to 
hold  the  same,  for  the  said  trustee  to  receive  the  rents  and  profits 
thereof,  and  after  paying  therefrom  all  the  taxes,  repairs,  insurance, 
and  other  charges  thereon,  to  pay  to  my  said  son  Hezekiah  the  net  in- 
come thereof  during  his  natural  life,  for  his  own  use,  and  from  and  aft- 
er his  decease  to  convey  the  said  portion  of  said  real  estate  according 
to  the  provisions  of  the  last  will  and  testament  of  the  said  Hezekiah 
Sabin,  Jr.,  and  in  default  of  such  will,  to  his  heirs  at  law;"  and  that 
after  creating  other  trusts,  in  like  terms,  of  his  property,  real  and  per- 
sonal, to  be  administered  by  the  same  trustee  for  the  benefit  of  his 
children,  male  and  female,  including  said  Hezekiah,  Jr.,  the  testator, 
in  the  10th  clause  of  his  will,  declared  as  follows:  "Section  10th,  I 
hereby  declare  it  to  be  my  will,  that  the  payment  of  the  rents,  income, 
interest,  or  dividends,  to  be  made  by  the  trustee  to  my  children  in  pur- 
suance of  the  provisions  of  my  will,  shall  be  made  to  them  from  time 
to  time,  as  the  said  rents,  income,  interest,  or  dividends  accrue  or  may 
be  received,  and  not  in  the  way  of  anticipation,  nor  to  their  assigns, 
and  that  such  payments  shall  be  for  their  sole  and  separate  use."  The 
bill  further  set  forth,  that  whilst  said  Hezekiah  Sabin,  Jr.,  was  entitled 
as  aforesaid  under  the  will  of  his  father — being  in  danger  of  being 
committed  to  jail  in  a  certain  execution  for  rent,  then  out  against  him 
— he  cited  his  creditors  to  appear  to  show  cause  why  he  should  not 
take  the  poor  debtor's  oath ;  and,  as  the  condition  upon  which  he  was 
entitled  to  be  admitted  to  take  the  same,  on  the  24th  day  of  November, 
1856,  executed  to  the  plaintiff  in  fee  an  assignment  of  "all  my  (his)  es- 

8  See,  also,  In  re  Bullock,  60  L.  J.  Cb.  N.  S.  341  (1S91). 


Ch.  4)  RESTRAINTS   ON  ALIENATION  677 

tate,  both  real  and  personal,  not  exempt  from  attachment  by  law ;  to 
have  and  to  hold  the  same  in  trust  for  the  benefit  of  all  my  creditors  in 
proportion  to  their  respective  demands." 

The  bill  prayed,  that  Bradford  might  be  decreed  to  pay  the  rents  and 
profits  of  the  trust  property,  as  the  same  might  accrue,  to  the  plaintiff, 
for  the  benefit  of  the  creditors  of  Hezekiah  Sabin  the  younger,  and 
that  the  plaintiff  might  be  decreed  to  be  entitled  to  receive  the  same 
for  such  purpose;  that  Bradford  might  be  enjoined  from  paying  over 
such  rents  and  profits  to  Hezekiah  Sabin  the  younger,  or  to  others, 
and  for  further  relief. 

Ames,  C.  J.  The  demurrer  to  this  bill  is  attempted  to  be  supported, 
substantially,  upon  two  grounds:  First,  that  Hezekiah  Sabin,  Jr.,  had 
not  such  an  equitable  interest,  under  his  father's  will,  in  the  trust 
property  in  question,  that  he  could  aliene  the  same  to  the  plaintiff  in 
trust  for  his  creditors ;  and,  second,  that  in  legal  intendment  he  did 
not,  by  the  assignment  executed  by  him  under  the  Poor  Debtor's  Act, 
aliene  the  same  to  the  plaintiff,  upon  such  trust. 

The  nature  of  the  debtor's  interest  in  the  trust  property,  under  his 
father's  will,  was  an  equitable  estate  for  life,  with  a  power  of  disposing 
of  the  remainder  in  fee  by  will ;  in  default  of  such  disposition,  such 
remainder  to  be  conveyed  to  his  heirs  at  law ;  there  being  also  a  clause 
in  the  will  against  anticipation  and  alienation  of  the  rents  and  profits 
during  the  debtor's  life.  It  is  quite  clear,  that  it  was  the  intention  of 
the  testator  to  make  an  alimentary  provision  for  his  son  during  life, 
which  should  give  him  all  the  advantages  of  an  estate  in  fee,  without 
the  legal  incidents  of  such  an  estate, — alienability,  unless  by  will,  and 
subjectiveness  to  the  payment  of  the  son's  debts.  Such  restraints, 
however,  are  so  opposed  to  the  nature  of  property, — and,  so  far  as 
subjectiveness  to  debts  is  concerned,  to  the  honest  policy  of  the  law, — 
as  to  be  totally  void,  unless,  indeed,  which  is  not  the  case  here,  in  the 
event  of  its  being  attempted  to  be  aliened,  or  seized  for  debts,  it  is 
given  over  by  the  testator  to  some  one  else.  This  has  been  the  settled 
doctrine  of  a  court  of  chancery,  at  least  since  Brandon  v.  Robinson, 
18  Ves.  429 ;  and  in  application  to  such  a  case  as  this,  is  so  honest 
and  just,  that  we  would  not  change  it  if  we  could.  Certainly,  no  man 
should  have  an  estate  to  live  on,  but  not  an  estate  to  pay  his  debts 
with.  Certainly,  property  available  for  the  purposes  of  pleasure  or 
profit,  should  be  also  amenable  to  the  demands  of  justice. 

The  other  ground  of  demurrer  taken,  is  equally  without  support. 
The  difference  between  the  prescribed  terms  of  the  assignment  of  an 
insolvent  and  a  poor  debtor,  remarked  upon  by  the  counsel  for  the 
respondent,  is  verbal  merely :  the  words  "all  my  estate,  both  real  and 
personal,  not  exempt  from  attachment  by  law,"  prescribed  for  the  lat- 
ter as  descriptive  of  the  subject  of  conveyance,  being  quite  ample 
enough  to  include  every  equitable  as  well  as  legal  interest  in  the  real 
or  personal  property  of  the  assigning  debtor.     The  property  excepted 


G78  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  5 

from  the  assignment  by  the  words  "exempt  from  attachment,"  is  clear- 
ly that  expressly  exempted  from  attachment  by  our  Statute  relating  to 
that  subject.  It  can  hardly  be  supposed  that  the  General  Assembly 
intended  that  a  man  should  be  admitted  to  the  poor  debtor's  oath, 
whilst  rolling  in  the  wealth  of  a  trust  estate,  applicable  by  law  to  the 
payment  of  his  debts. 

It  has  been  suggested,  that  if  the  points  taken  on  demurrer  be  decid- 
ed against  the  respondents,  they  will  decline  to  answer  over,  and  will 
submit  to  the  decree  asked ;  and  we  are  requested,  under  such  circum- 
stances, by  the  respondent,  Bradford,  to  allow  him  his  costs  and  neces- 
sary expenses  of  defence  out  of  the  trust  fund.  As  this  is  the  first  time 
that  this  question  has  come  before  the  court,  and  the  trustee  has 
taken  the  speediest  mode  of  bringing  the  question  of  his  duty,  under 
the  circumstances,  to  a  decision,  we  think  it  but  reasonable,  that  sub- 
mitting now  to  the  decree  asked  by  the  plaintiff,  he  should  be  made 
whole  out  of  the  trust  fund  for  his  costs,  and  for  necessary  expenses 
in  endeavoring  to  keep  it  applied  according  to  the  will  of  his  testator. 

Demurrer  overruled. 


NICHOLS  V.  EATON. 
(Supreme  Court  of  the  United  States,  1875.    91  U.  S.  716,  23  L.  Ed.  254.) 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the  District 
of  Rhode  Island. 

The  controversy  in  this  case  arises  on  the  construction  and  legal 
effect  of  certain  clauses  in  the  will  of  Mrs.  Sarah  B.  Eaton.  At  the 
time  of  her  death,  and  at  the  date  of  her  will,  she  had  three  sons  and 
a  daughter;  being  herself  a  widow,  and  possessed  of  large  means  of 
her  own.  By  her  will,  she  devised  her  estate,  real  and  personal,  to 
three  trustees,  upon  trusts  to  pay  the  rents,  profits,  dividends,  interest, 
and  income  of  the  trust-property  to  her  four  children  equally,  for  and 
during  their  natural  lives,  and,  after  their  decease,  in  trust  for  such 
of  their  children  as  shall  attain  the  age  of  twenty-one,  or  shall  die 
under  that  age  having  lawful  issue  living ;  subject  to  the  condition,  that 
if  any  of  her  children  should  die  without  leaving  any  child  who  should 
survive  the  testatrix  and  attain  the  age  of  twenty-one  years,  or  die 
under  that  age  leaving  lawful  issue  living  at  his  or  her  decease,  then, 
as  to  the  share  or  respective  shares,  as  well  original  as  accruing,  of 
such  child  or  children  respectively,  upon  the  trusts  declared  in  said  will 
concerning  the  other  share  or  respective  shares.  The  will  also  con- 
tained a  provision,  that  if  her  said  sons  respectively  should  alienate  or 
dispose  of  the  income  to  which  they  were  entitled  under  the  trusts  of 
the  will,  or  if,  by  reason  of  bankruptcy  or  insolvency,  or  any  other 
means  whatsoever,  said  income  could  no  longer  be  personally  enjoyed 
by  them  respectively,  but  the  same  would  become  vested  in  or  payable 


Ch.  4)  RESTRAINTS   ON   ALIENATION  679 

to  some  other  person,  then  the  trust  expressed  in  said  will  concerning 
so  much  thereof  as  would  so  vest  should  immediately  cease  and  de- 
termine. In  that  case,  during  the  residue  of  the  life  of  such  son,  that 
part  of  the  income  of  the  trust- fund  was  to  be  paid  to  the  wife  and 
children,  or  wife  or  child,  as  the  case  might  be,  of  such  son;  and,  in 
default  of  any  objects  of  the  last-mentioned  trust,  the  income  was  to 
accumulate  in  augmentation  of  the  principal  fund. 

There  is  another  proviso,  which,  as  it  is  the  main  ground  of  the 
present  litigation,  is  here  given  verbatim,  as  follows : 

"Provided  also,  that  in  case  at  any  future  period  circumstances 
should  exist,  which,  in  the  opinion  of  my  said  trustees,  shall  justify 
or  render  expedient  the  placing  at  the  disposal  of  my  said  children 
respectively  any  portion  of  my  said  real  and  personal  estate,  then  it 
shall  be  lawful  for  my  said  trustees,  in  their  discretion,  but  without  its 
being  in  any  manner  obligatory  upon  them,  to  transfer  absolutely  to 
my  said  children  respectively,  for  his  or  her  own  proper  use  and  benefit, 
any  portion  not  exceeding  one-half  of  the  trust- fund  from  whence  his 
or  her  share  of  the  income  under  the  preceding  trusts  shall  arise ;  and, 
immediately  upon  such  transfer  being  made,  the  trusts  hereinbefore 
declared  concerning  so  much  of  the  trust-fund  as  shall  be  so  transferred 
shall  absolutely  cease  and  determine ;  and  in  case  after  the  cessation 
of  said  income  as  to  my  said  sons  respectively,  otherwise  than  by  death, 
as  hereinbefore  provided  for,  it  shall  be  lawful  for  my  said  trustees,  in 
their  discretion,  but  without  its  being  obligatory  upon  them,  to  pay  to 
or  apply  for  the  use  of  my  said  sons  respectively,  or  for  the  use  of  such 
of  my  said  sons  and  his  wife  and  family,  so  much  and  such  part  of  the 
income  to  which  my  said  sons  respectively  would  have  been  entitled 
under  the  preceding  trusts  in  case  the  forfeiture  hereinbefore  provided 
for  had  not  happened." 

The  daughter  died  soon  after  the  mother,  without  issue,  and  unmar- 
ried. Amasa  M.  Eaton,  one  of  the  sons  of  the  testatrix,  failed  in 
business,  and  made  a  general  assignment  of  all  his  property  to  Charles 
A.  Nichols  for  the  benefit  of  his  creditors,  in  jMarch,  1867;  and  in  De- 
cember, 1868,  was,  on  his  own  petition,  declared  a  bankrupt,  and  said 
Nichols  was  duly  appointed  his  assignee  in  bankruptcy.  Said  Amasa 
was  then,  and  during  the  pendency  of  this  suit,  unmarried,  and  without 
children.  He,  William  M.  Bailey,  and  George  B.  Ruggles  (a  son  of 
testatrix  by  a  former  husband),  were  the  executors  and  trustees  of 
the  will. 

It  will  be  seen  at  once,  that  whether  regard  be  had  to  the  assignment 
before  bankruptcy,  or  to  the  effect  of  the  adjudication  of  bankruptcy, 
and  the  appointment  of  Nichols  as  assignee  in  that  proceeding,  one  of 
the  conditions  had  occurred  on  which  the  will  of  Mrs.  Eaton  had  de- 
clared that  the  devise  of  a  part  of  the  income  of  the  trust  estates  to 
Amasa  M.  Eaton  should  cease  and  determine ;  and,  as  he  had  no  wife 
or  children  in  whom  it  could  vest,  it  became,  by  the  alternative  pro- 


680  ILLEGAL  CONDITIONS   AND   RESTRAINTS  (Part  5 

vision  of  the  will,  a  fund  to  accumulate  until  his  death,  or  until  he 
should  have  a  wife  or  child  who  could  take  under  the  trust. 

But  Nichols,  the  assignee,  construing  the  whole  of  the  will  together, 
and  especially  the  proviso  above  given  verbatim,  to  disclose  a  purpose, 
under  cover  of  a  discretionary  power,  to  secure  to  her  son  the  right  to 
receive  to  his  ow^n  use  the  share  of  the  income  to  which  he  was  entitled 
before  the  bankruptcy,  in  the  same  manner  afterwards  as  if  that  event 
had  not  occurred,  brought  this  bill  against  the  said  executors  and 
trustees  to  subject  that  income  to  administration  by  him  as  assignee  in 
bankruptcy  for  the  benefit  of  the  creditors. 

Upon  a  final  hearing  the  Circuit  Court  dismissed  the  bill,  and  Nichols 
appealed  to  this  court. 

IVIr.  Justice  Miller,  after  stating  the  case,  delivered  the  opinion  of 
the  court. 

The  claim  of  the  assignee  is  founded  on  the  proposition,  ably  pre- 
sented here  by  counsel,  that  a  will  which  expresses  a  purpose  to  vest 
in  a  devisee  either  personal  property,  or  the  income  of  personal  or  real 
property,  and  secure  to  him  its  enjoyment  free  from  liability  for  his 
debts,  is  void  on  grounds  of  public  policy,  as  being  in  fraud  of  the 
rights  of  creditors ;  or  as  expressed  by  Lord  Eldon  in  Brandon  v. 
Robinson,  18  Ves.  433,  "If  property  is  given  to  a  man  for  his  life, 
the  donor  cannot  take  away  the  incidents  of  a  life-estate." 

There  are  two  propositions  to  be  considered  as  arising  on  the  face  of 
this  will,  as  applicable  to  the  facts  stated:  1.  Does  the  true  construe^ 
tion  of  the  will  bring  it  within  that  class  of  cases,  the  provisions  of 
which  on  this  point  are  void  under  the  principle  above  stated?  and  2. 
If  so,  is  that  principle  to  be  the  guide  of  a  court  of  the  United  States 
sitting  in  chancery? 

Taking  for  our  guide  the  cases  decided  in  the  English  courts,  the  doc- 
trine of  the  case  of  Brandon  v.  Robinson  seems  to  be  pretty  well 
established.  It  is  equally  well  settled  that  a  devise  of  the  income  of 
property,  to  cease  on  the  insolvency  or  bankruptcy  of  the  devisee,  is 
good,  and  that  the  limitation  is  valid.  Demmill  v.  Bedford,  3  Ves.  149 ; 
Brandon  v.  Robinson,  18  Id.  429;  Rochford  v.  Hackman,  9  Hare; 
Lewin  on  Trusts,  80,  ch.  vii.,  sect.  2;  Tillinghast  v.  Bradford,  5  R. 
I.  205. 

If  there  had  been  no  further  provision  in  regard  to  the  matter  in  this 
will  than  that  on  the  bankruptcy  or  insolvency  of  the  devisee,  the  trust 
as  to  him  should  cease  and  determine ;  or  if  there  had  been  a  simple 
provision,  that,  in  such  event,  that  part  of  the  income  of  the  estate 
should  go  to  some  specified  person  otlier  than  the  bankrupt,  there 
would  be  no  difficulty  in  the  case.  But  the  first  tiaist  declared  after 
the  bankruptcy  for  this  part  of  the  income  is  in  favor  of  the  wife,  child, 
or  children  of  such  bankrupt,  and  in  such  manner  as  said  trustees  in 
their  discretion  shall  think  proper.  If  the  bankrupt  devisee  had  a  wife 
or  child  living  to  take  under  this  branch  of  the  will,  there  does  not 


Ch.  4)  RESTRAINTS   ON  ALIENATION  681 

seem  to  be  any  doubt  that  there  would  be  nothing  left  which  could  go 
to  his  assignee  in  bankruptcy.  The  cases  on  this  point  are  well  con- 
sidered in  Lewin  on  Trusts,  above  cited;  and  the  doctrine  may  be 
stated,  that  a  direction  that  the  trust  to  the  first  taker  shall  cease  on 
his  bankruptcy,  and  shall  then  go  to  his  wife  or  children,  is  valid,  and 
the  entire  interest  passes  to  them ;  but  that  if  the  devise  be  to  him  and 
his  wife  or  children,  or  if  he  is  in  any  way  to  receive  a  vested  interest, 
that  interest,  whatever  it  may  be,  may  be  separated  from  those  of  his 
wife  or  children,  and  be  paid  over  to  his  assignee.  Page  v.  Way, 
3  Beav.  20;  Perry  v.  Roberts,  1  Myl.  &  K.  4;  Rippon  v.  Norton, 
2  Beav.  63 ;  Lord  v.  Bunn,  2  You.  &  Coll.  Ch.  98.  Where,  however, 
the  devise  over  is  for  the  support  of  the  bankrupt  and  his  family,  in 
such  manner  as  the  trustees  may  think  proper,  the  weight  of  authority 
in  England  seems  to  be  against  the  proposition  that  anything  is  left  to 
which  the  assignee  can  assert  a  valid  claim.  Twopeny  v.  Peyton,  10 
Sim.  487 ;  Godden  v.  Crowhurst,  Id.  642. 

In  the  case  before  us,  the  trustees  are  authorized,  in  the  event  of  the 
bankruptcy  of  one  of  the  sons  of  testatrix  without  wife  or  children 
(which  is  the  condition  of  the  trust  as  to  Amasa  M.  E^ton),  to  loan 
and  reinvest  that  portion  of  the  income  of  the  estate  in  augmentation 
of  the  principal  sum  or  capital  of  the  estate  until  his  decease,  or  until 
he  shall  have  wife  or  children  capable  of  receiving  the  trust  of  the  tes- 
tatrix forfeited  by  him. 

There  does  not  seem,  thus  far,  any  intention  to  secure  or  revest  in 
the  bankrupt  any  interest  in  the  devise  which  he  had  forfeited ;  and 
there  can  be  no  doubt,  that,  but  for  the  subsequent  clauses  of  the  will, 
there  would  be  nothing  in  which  the  assignee  could  claim  an  interest. 
But  there  are  the  provisions,  that  the  trustees  may,  at  their  discretion, 
transfer  at  any  time  to  either  of  the  devisees  the  half  or  any  less  pro- 
portion of  the  share  of  the  fund  itself  which  said  devisee  would  be  en- 
titled to  if  the  whole  fund  were  to  be  equally  distributed ;  and  the  fur- 
ther provision,  that  after  the  cesser  of  income  provided  for  in  case  of 
bankruptcy  or  other  cause,  it  shall  be  lawful,  but  not  obligatory  on  her 
said  trustees,  to  pay  to  said  bankrupt  or  insolvent  son,  or  to  apply  for 
the  use  of  his  family,  such  and  so  much  of  said  income  as  said  son 
would  have  been  entitled  to  in  case  the  forfeiture  had  not  happened. 

It  is  strongly  argued  that  these  provisions  are  designed  to  evade  the 
policy  of  the  law  already  mentioned ;  that  the  discretion  vested  in  the 
trustees  is  equivalent  to  a  direction,  and  that  it  was  well  known  it 
would  be  exercised  in  favor  of  the  bankrupt. 

The  two  cases  of  Twopeny  v.  Peyton  and  Godden  v.  Crowhurst, 
above  cited  from  10  Sim.,  seem  to  be  in  conflict  with  this  doctrine ; 
while  the  cases  cited  in  appellant's  brief  go  no  farther  than  to  hold, 
that  when  there  is  a  right  to  support  or  maintenance  in  the  bankrupt, 
or  the  bankrupt  and  his  family,  a  right  which  he  could  enforce,  then 
such  interest,  if  it  can  be  ascertained,  goes  to  the  assignee. 


682  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  5 

No  case  is  cited,  none  is  known  to  us,  which  goes  so  far  as  to  hold 
that  an  absokite  discretion  in  the  trustee — a  discretion  which,  by  the 
express  language  of  the  will,  he  is  under  no  obligation  to  exercise  in 
favor  of  the  bankrupt — confers  such  an  interest  on  the  latter,  that  he 
or  his  assignee  in  bankruptcy  can  successfully  assert  it  in  a  court  of 
equity  or  any  other  court. 

As  a  proposition,  then,  unsupported  by  any  adjudged  case,  it  does 
not  commend  itself  to  our  judgment  on  principle.  Conceding  to  its 
fullest  extent  the  doctrine  of  the  English  courts,  their  decisions  are  all 
founded  on  the  proposition,  that  there  is  somewhere  in  the  instrument 
which  creates  the  trust  a  substantial  right,  a  right  which  the  appropriate 
court  would  enforce,  left  in  the  bankrupt  after  his  insolvency,  and  after 
the  cesser  of  the  original  and  more  absolute  interest  conferred  by  the 
earlier  clauses  of  the  will.  This  constitutes  the  dividing-line  in  the 
cases  which  are  apparently  in  conflict.  Applying  this  test  to  the  will 
before  us,  it  falls  short,  in  our  opinion,  of  conferring  any  such  right  on 
the  bankrupt.  Neither  of  the  clauses  of  the  provisos  contain  anything 
more  than  a  grant  to  the  trustees  of  the  purest  discretion  to  exercise 
their  power  in  favor  of  testatrix's  sons.  It  would  be  a  sufficient  answer 
to  any  attempt  on  the  part  of  the  son  in  any  court  to  enforce  the  ex- 
ercise of  that  discretion  in  his  favor,  that  the  testatrix  has  in  express 
terms  said  that  such  exercise  of  this  discretion  is  not  "in  any  manner 
obligator)^  upon  them," — words  repeated  in  both  these  clauses.  To 
compel  them  to  pay  any  of  this  income  to  a  son  after  bankruptcy,  or  to 
his  assignee,  is  to  make  a  will  for  the  testatrix  which  she  never  made ; 
and  to  do  it  by  a  decree  of  a  court  is  to  substitute  the  discretion  of  the 
chancellor  for  the  discretion  of  the  trustees,  in  whom  alone  she  reposed 
it.  When  trustees  are  in  existence,  and  capable  of  acting,  a  court  of 
equity  will  not  interfere  to  control  them  in  the  exercise  of  a  discretion 
vested  in  them  by  the  instrument  under  which  they  act.  Hill  on  Trus- 
tees, 486;  Lewin  on  Trusts,  538;  Boss  v.  Goodsall,  1  Younge  & 
Collier,  617;  Maddison  v.  Andrew,  1  Ves.  Sr.  60.  And  certainly  they 
would  not  do  so  in  violation  of  the  wishes  of  the  testator. 

But,  while  we  have  thus  attempted  to  show  that  Mrs.  Eaton's  will  is 
valid  in  all  its  parts  upon  the  extremest  doctrine  of  the  English  Chan- 
cery Court,  we  do  not  wish  to  have  it  understood  that  we  accept  the 
limitations  which  that  court  has  placed  upon  the  power  of  testamentary 
disposition  of  property  by  its  owner.  We  do  not  see,  as  implied  in  the 
remark  of  Lord  Eldon,  that  the  power  of  alienation  is  a  necessary  in- 
cident to  a  life-estate  in  real  property,  or  that  the  rents  and  profits  of 
real  property  and  the  interest  and  dividends  of  personal  property  may 
not  be  enjoyed  by  an  individual  without  liability  for  his  debts  being 
attached  as  a  necessary  incident  to  such  enjoyment.  This  doctrine  is 
one  which  the  English  Chancery  Court  has  engrafted  upon  the  common 
law  for  the  benefit  of  creditors,  and  is  comparatively  of  modern  origin. 
We  concede  that  there  are  limitations  which  public  policy  or  general 


Ch.  4)  RESTRAINTS   OX   ALIENATION  683 

Statutes  impose  upon  all  dispositions  of  property,  such  as  those  de- 
signed to  prevent  perpetuities  and  accumulations  of  real  estate  in  cor- 
porations and  ecclesiastical  bodies.  We  also  admit  that  there  is  a  just 
and  sound  policy  peculiarly  appropriate  to  the  jurisdiction  of  courts  of 
equity  to  protect  creditors  against  frauds  upon  their  rights,  whether 
they  be  actual  or  constructive  frauds.  But  the  doctrine,  that  the  owner 
of  property,  in  the  free  exercise  of  his  will  in  disposing  of  it,  cannot 
so  dispose  of  it,  but  that  the  object  of  his  bounty,  who  parts  with 
nothing  in  return,  must  hold  it  subject  to  the  debts  due  his  creditors, 
though  that  may  soon  deprive  him  of  all  the  benefits  sought  to  be  con- 
ferred by  the  testator's  affection  or  generosity,  is  one  which  we  are  not 
prepared  to  announce  as  the  doctrine  of  this  court. 

If  the  doctrine  is  to  be  sustained  at  all,  it  must  rest  exclusively  on 
the  rights  of  creditors.  Whatever  may  be  the  extent  of  those  rights 
in  England,  the  policy  of  the  States  of  this  Union,  as  expressed  both 
by  their  Statutes  and  the  decisions  of  their  courts,  has  not  been  carried 
so  far  in  that  direction. 

It  is  believed  that  every  State  in  the  Union  has  passed  Statutes  by 
which  a  part  of  the  property  of  the  debtor  is  exempt  from  seizure  on 
execution  or  other  process  of  the  courts ;  in  short,  is  not  by  law  liable 
to  the  payment  of  his  debts.  This  exemption  varies  in  its  extent  and 
nature  in  the  different  States.  In  some  it  extends  only  to  the  merest 
implements  of  household  necessity ;  in  others  it  includes  the  library  of 
the  professional  man,  however  extensive,  and  the  tools  of  the  mechanic ; 
and  in  many  it  embraces  the  homestead  in  which  the  family  resides. 
This  has  come  to  be  considered  in  this  country  as  a  wise,  as  it  certainly 
may  be  called  a  settled,  policy  in  all  the  States.  To  property  so  ex- 
empted the  creditor  has  no  right  to  look,  and  does  not  look,  as  a  means 
of  payment  when  his  debt  is  created;  and  while  this  court  has  steadily 
held,  under  the  constitutional  provision  against  impairing  the  obliga- 
tions of  contracts  by  State  laws,  that  such  exemption  laws,  when  first 
enacted,  were  invalid  as  to  debts  then  in  existence,  it  has  always  held, 
that,  as  to  contracts  made  thereafter,  the  exemptions  were  valid. 

This  distinction  is  well  founded  in  the  sound  and  unanswerable 
reason,  that  the  creditor  is  neither  defrauded  nor  injured  by  the  ap- 
plication of  the  law  to  his  case,  as  he  knows,  when  he  parts  with  the 
consideration  of  his  debt,  that  the  property  so  exempt  can  never  be 
made  liable  to  its  payment.  Nothing  is  withdrawn  from  this  liability 
which  was  ever  subject  to  it,  or  to  which  he  had  a  right  to  look  for  its 
discharge  in  payment.  The  analogy  of  this  principle  to  the  devise  of 
the  income  from  real  and  personal  property  for  life  seems  perfect.  In 
this  country,  all  wills  or  other  instruments  creating  such  trust-estates 
are  recorded  in  public  offices,  where  they  may  be  inspected  by  every 
one ;  and  the  law  in  such  cases  imputes  notice  to  all  persons  concerned 
of  all  the  facts  which  they  might  know  by  the  inspection.  When, 
therefore,  it  appears  by  the  record  of  a  will  that  the  devisee  holds  this 


684  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  3 

life-estate  or  income,  dividends,  or  rents  of  real  or  personal  properly, 
payable  to  him  alone,  to  the  exclusion  of  the  alienee  or  creditor,  the 
latter  knows,  that,  in  creating  a  debt  with  such  person,  he  has  no  right 
to  look  to  that  income  as  a  means  of  discharging  it.  He  is  neither 
misled  nor  defrauded  when  the  object  of  the  testator  is  carried  out  by 
excluding  him  from  any  benefit  of  such  a  devise. 

Nor  do  we  see  any  reason,  in  the  recognized  nature  and  tenure  of 
property  and  its  transfer  by  will,  why  a  testator  who  gives,  w^io  gives 
without  any  pecuniary  return,  who  gets  nothing  of  property  value  from 
the  donee,  may  not  attach  to  that  gift  the  incident  of  continued  use,  of 
uninterrupted  benefit  of  the  gift,  during  the  life  of  the  donee.  Why  a 
parent,  or  one  who  loves  another,  and  wishes  to  use  his  own  property 
in  securing  the  object  of  his  affection,  as  far  as  property  can  do  it, 
from  the  ills  of  life,  the  vicissitudes  of  fortune,  and  even  his  own  im- 
providence, or  incapacity  for  self-protection,  should  not  be  permitted  to 
do  so,  is  not  readily  perceived. 

These  views  are  well  supported  by  adjudged  cases  in  the  State  courts 
of  the  highest  character. 

In  the  case  of  Fisher  v.  Taylor,  2  Rawle  (Pa.)  33,  a  testator  had  di- 
rected his  executors  to  purchase  a  tract  of  land,  and  take  the  title  in 
their  name  in  trust  for  his  son,  who  was  to  have  the  rents,  issues,  and 
profits  of  it  during  his  life,  free  from  liability  for  any  debts  then  or 
thereafter  contracted  by  him.  The  Supreme  Court  of  Pennsylvania 
held  that  this  life-estate  was  not  liable  to  execution  for  the  debts  of  the 
son.  "A  man,"  says  the  court,  "may  undoubtedly  dispose  of  his  land  so 
as  to  secure  to  the  object  of  his  bounty,  and  to  him  exclusively,  the 
annual  profits.  The  mode  in  which  he  accomplishes  such  a  purpose  is 
by  creating  a  trust  estate,  explicitly  designating  the  uses  and  defining 
the  powers  of  the  trustees.  *  *  *  Nor  is  such  a  provision  contrary 
to  the  policy  of  the  law  or  to  any  Act  of  Assembly.  Creditors  cannot 
complain,  because  they  are  bound  to  know  the  foundation  on  which 
they  extend  their  credit." 

In  the  subsequent  case  of  Holdship  v.  Patterson,  7  Watts  (Pa.)  547, 
where  the  friends  of  a  man  made  contributions  by  a  written  agreement 
to  the  support  of  himself  and  family,  the  court  held  that  the  instal- 
ments which  they  had  promised  to  pay  could  not  be  diverted  by  his 
creditors  to  the  payment  of  his  debts ;  and  Gibson,  C.  J.,  remarks, 
that  "the  fruit  of  their  bounty  could  not  have  been  turned  from  its 
object  by  the  defendant's  creditors,  had  it  been  applicable  by  the  terms 
of  the  trust  to  his  personal  maintenance ;  for  a  benefactor  may  certainly 
provide  for  the  maintenance  of  a  friend,  without  exposing  his  bounty 
to  the  debts  or  imprudence  of  the  beneficiary." 

In  the  same  court,  as  late  as  1864,  it  was  held  that  a  devise  to  a  son 
of  the  rents  and  profits  of  an  estate  during  his  natural  life,  without 
being  subject  to  his  debts  and  liabilities,  is  a  valid  trust;    and,  the 


Ch.  4)  RESTRAINTS   ON  ALIENATION  6S5 

estate  being  vested  in  trustees,  the  son  could  not  alienate.     Shank- 
land's  Appeal,  47  Pa.  113. 

The  same  proposition  is  either  expressly  or  impliedly  asserted  by 
that  court  in  the  cases  of  Ashurst  v.  Given,  5  Watts.  &  S.  (Pa.)  323 ; 
Brown  v.  Williamson,  36  Pa.  338;  Still  v.  Spear,  45  Pa.  168. 

In  the  case  of  Leavitt  v.  Beirne,  21  Conn.  1,  Waite,  J.,  in  delivering 
the  opinion  of  the  court,  says,  "We  think  it  in  the  power  of  a  parent 
to  place  property  in  the  hands  of  trustees  for  the  benefit  of  a  son 
and  his  wife  and  children,  with  full  power  in  them  to  manage  and  apply 
it  at  their  discretion,  without  any  power  in  the  son  to  interfere  in  that 
management,  or  in  the  disposition  of  it  until  it  has  actually  been  paid 
over  to  him  by  the  trustees ;"  and  he  proceeds  to  argue  in  favor  of  the 
existence  of  this  power,  from  the  vicious  habits  or  intemperate  char- 
acter of  the  son,  and  the  right  of  the  father  to  provide  against  these 
misfortunes. 

In  the  case  of  Nickell  et  al.  v.  Handly  et  al.,  10  Grat.  (Va.)  336,  the 
court  thus  expresses  its  view  on  the  general  question,  though  not,  per- 
haps, strictly  necessary  to  the  judgment  in  that  case :  "There  is  nothing 
in  the  nature  or  law  of  property  which  would  prevent  the  testatrix, 
when  about  to  die,  from  appropriating  her  property  to  the  support  of 
her  poor  and  helpless  relatives,  according  to  the  different  conditions  and 
wants  of  such  relatives ;  nothing  to  prevent  her  from  charging  her 
property  with  the  expense  of  food,  raiment,  and  shelter  for  such  rela- 
tives. There  is  nothing  in  law  or  reason  which  should  prevent  her  from 
appointing  an  agent  or  trustee  to  administer  her  bounty." 

In  the  case  of  Pope's  Executors  v.  Elliott  &  Co.,  8  B.  Mon.  (Ky.) 
56,  the  testator  had  directed  his  executors  to  pa}^  for  the  support  of 
Robert  Pope  the  sum  of  ^25  per  month.  Robert  Pope  having  been  in 
the  Rocky  Mountains  until  the  sum  of  $225  of  these  monthly  payments 
had  accumulated  in  the  hands  of  the  executors,  his  creditors  filed  a  bill 
in  chancery,  accompanied  by  an  attachment,  to  subject  this  fund  to  the 
payment  of  their  debt. 

The  Court  of  Appeals'  of  Kentucky  say  that  it  was  the  manifest 
intent  of  the  testator  to  secure  to  Robert  the  means  of  support  during 
his  life  to  the  extent  of  $25  per  month,  or  $300  per  year;  and  that 
this  intent  cannot  be  thwarted,  either  by  Robert  himself  by  assignment 
or  alienation,  or  by  his  creditors  seizing  it  for  his  debts,  unless  the 
provision  is  contrary  to  law  or  public  policy.  After  an  examination 
of  the  Statutes  of  Kentucky  and  the  general  principles  of  equity  juris- 
prudence on  this  subject,  they  hold  that  neither  of  these  are  invaded 
by  the  provision  of  the  will. 

The  last  case  we  shall  refer  to  specially  is  that  of  Campbell  v.  Foster, 
35  N.  Y.  361. 

In  that  case  it  is  held,  after  elaborate  consideration,  that  the  interest 
of  a  beneficiary  in  a  trust-fund,  created  by  a  person  other  than  the 
debtor,  cannot  be  reached  by  a  creditor's  bill ;  and,  while  the  argument 


686  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  5 

is  largely  based  upon  the  special  provision  of  the  Statute  regulating  the 
jurisdiction  of  the  court  in  that  class  of  cases,  the  result  is  placed  with 
equal  force  of  argument  on  the  general  doctrines  of  the  Court  of 
Chancery,  and  the  right  of  the  owner  of  property  to  give  it  such  direc- 
tion as  he  may  choose  without  its  being  subject  to  the  debts  of  those 
upon  whom  he  intends  to  confer  his  bounty. 

We  are  not  called  upon  in  this  connection  to  say  how  far  we  would 
feel  bound,  in  a  case  originating  in  a  State  where  the  doctrine  of  the 
English  courts  had  been  adopted  so  as  to  become  a  rule  of  property,  if 
such  a  proposition  could  be  predicated  of  a  rule  like  this.  Nor  has  the 
time  which  the  pressure  of  business  in  this  court  authorizes  us  to 
devote  to  this  case  permitted  any  further  examination  into  the  de- 
cisions of  the  State  courts.  We  have  indicated  our  views  in  this 
matter  rather  to  forestall  the  inference,  that  we  recognize  the  doctrine 
relied  on  by  appellants,  and  not  much  controverted  by  opposing  counsel, 
than  because  we  have  felt  it  necessary  to  decide  it,  though  the  judg- 
ment of  the  court  may  rest  equally  well  on  either  of  the  propositions 
which  we  have  discussed.  We  think  the  decree  of  the  court  below  may 
be  satisfactorily  affirmed  on  both  of  them. 

Other  objections  have  been  urged  by  counsel ;  such  as  that  the  bank- 
rupt is  himself  one  of  the  trustees  of  the  will,  and  will  exercise  his 
discretion  favorably  to  himself.  But  there  are  two  other  trustees,  and 
it  requires  their  joint  action  to  confer  on  him  the  benefits  of  this  trust. 
It  is  said  that  one  of  them  is  mentally  incompetent  to  act ;  but  this  is 
not  established  by  the  testimony.  It  is  said  also  that,  since  his  bank- 
ruptcy, the  defendant,  Amasa,  has  actually  received  $25,000  of  this 
fund ;  and  that  should  go  to  the  assignee,  as  it  shows  conclusively  that 
the  objections  to  the  validity  of  the  will  were  well  founded. 

But  the  conclusive  answer  to  all  these  objections  is,  that,  by  the  will 
of  decedent, — a  will  which,  as  we  have  shown,  she  had  a  lawful  right 
to  make, — the  insolvency  of  her  son  terminated  all  his  legal  vested 
right  in  her  estate,  and  left  nothing  in  him  which  could  go  to  his  cred- 
itors, or  to  his  assignees  in  bankruptcy,  or  to  his  prior  assignee;  and 
that  what  may  have  come  to  him  after  his  bankruptcy  through  the  vol- 
untary action  of  the  trustees,  under  the  terms  of  the  discretion  reposed 
in  them,  is  his  lawfully,  and  cannot  now  be  subjected  to  the  control  of 
his  assignee. 

Decree  affirmed.^ 

4  "It  is  a  settled  rule  of  law,  that  the  beneficial  interest  of  the  cestui  que 
trust,  whatever  it  may  be,  is  liable  for  the  payment  of  his  debts.  It  cannot 
be  so  fenced  about  by  inhibitions  and  restrictions  as  to  secure  to  it  the  in- 
consistent characteristics  of  right  and  enjoyment  to  the  beneficiary  and  im- 
munity from  his  creditors.  A  condition  precedent  that  the  provision  shall  not 
vest  until  his  debts  are  paid,  and  a  condition  subse^iuent  that  it  shall  be 
divested  and  forfeited  by  his  insolvency,  with  a  limitation  over  to  another 
person,  are  valid,  and  the  law  will  give  them  full  effect.  Beyond  this,  pro- 
tection from  the  claims  of  creditors  is  not  allowed  to  go." — Per  Swayne,  J.,  in 
Nichol  v.  Levy,  5  Wall.  433,  441,  18  L.  Ed.  5'JG  (ISUG). 


r 


Ch.  4)  RESTRAINTS   ON  ALIENATION  687 


BROADWAY  BANK  v.  ADAPTS. 

(Supreme  Judicial  Court  of  Massachusetts,   1882,     133   Mass.   170,   43   Am. 

Rep.  504.) 

Morton,  C.  J.  The  object  of  this  bill  in  equity  is  to  reach  and  apply 
in  payment  of  the  plaintiff's  debt  due  from  the  defendant  Adams  the 
income  of  a  trust  fund  created  for  his  benefit  by  the  will  of  his  brother. 
The  eleventh  article  of  the  will  is  as  follows :  "I  give  the  sum  of 
seventy-five  thousand  dollars  to  my  said  executors  and  the  survivors 
or  survivor  of  them,  in  trust  to  invest  the  same  in  such  manner  as 
to  them  may  seem  prudent,  and  to  pay  the  net  income  thereof  semi- 
annually, to  my  said  brother  Charles  W.  Adams,  during  his  natural 
life,  such  payments  to  be  made  to  him  personally  when  convenient, 
otherwise,  upon  his  order  or  receipt  in  writing;  in  either  case  free 
from  the  interference  or  control  of  his  creditors,  my  intention  being 
that  the  use  of  said  income  shall  not  be  anticipated  by  assignment.  At 
the  decease  of  my  said  brother  Charles,  my  will  is  that  the  net  income 
of  said  seventy-five  thousand  dollars  shall  be  paid  to  his  present  wife, 
in  case  she  sundves  him,  for  the  benefit  of  herself  and  all  the  chil- 
dren of  said  Charles,  in  equal  proportions,  in  the  manner  and  upon  the 
conditions  the  same  as  herein  directed  to  be  paid  him  during  his  life, 
so  long  as  she  shall  remain  single.  And  my  will  is,  that,  after  the 
decease  of  said  Charles  and  the  decease  or  second  marriage  of  his 
said  wife,  the  said  seventy-five  thousand  dollars,  together  with  any 
accrued  interest  or  income  thereon  which  may  remain  unpaid,  as 
herein  above  directed,  shall  be  divided  equally  among  all  the  children 
of  my  said  brother  Charles,  by  any  and  all  his  wives,  and  the  repre- 
sentatives of  any  deceased  child  or  children  by  right  of  representa- 
tion." 

There  is  no  room  for  doubt  as  to  the  intention  of  the  testator.  It 
is  clear  that,  if  the  trustee  was  to  pay  the  income  to  the  plaintiff  un- 
der an  order  of  the  court,  it  would  be  in  direct  violation  of  the  in- 
tention of  the  testator  and  of  the  provisions  of  his  will.  The  court 
will  not  compel  the  trustee  thus  to  do  what  the  will  forbids  him  to 
do,  unless  the  provisions  and  intention  of  the  testator  are  unlawful. 

The  question  whether  the  founder  of  a  trust  can  secure  the  income 
of  it  to  the  object  of  his  bounty,  by  providing  that  it  shall  not  be 
alienable  by  him  or  be  subject  to  be  taken  by  his  creditors,  has  not 
been  directly  adjudicated  in  this  Commonwealth.  The  tendency  of  our 
decisions,  ho\veyer,  has  been  in  favor  of  such  a  power  in  the  founder. 
Braman  v.  Stiles,  2  Pick.  460,  13  Am.  Dec.  445;  Perkins  v.  Hays,  3 
Gray,  405 ;  Russell  v.  Grinnell,  105  Mass.  425 ;  Hall  v.  Williams,  120 
Mass.  344;   Sparhawk  v.  Cloon,  125  Mass.  263. 

It  is  true  that  the  rule  of  the  common  law  is,  that  a  man  cannot 
attach  to  a  grant  or  transfer  of  property,  otherwise  absolute,  the  con- 
dition that  it  shall  not  be  alienated ;   such  condition  being  repugnant  to 


688  ILLEGAL  COiXDITIOXS   AND   RESTRAINTS  (Part   5 

the  nature  of  the  estate  granted.  Co.  Lit.  223a;  Blackstone  Bank  v. 
Davis,  21  Pick.  42,  Z2  Am.  Dec.  241. 

Lord  Coke  gives  as  the  reason  of  the  rule,  that  "it  is  absurd  and 
repugnant  to  reason  that  he,  that  hath  no  possibility  to  have  the  land 
revert  to  him,  should  restrain  his  feoffee  in  fee  simple  of  all  his  power 
to  alien,"  and  that  this  is  "against  the  height  and  purity  of  a  fee 
simple."  By  such  a  condition,  the  grantor  undertakes  to  deprive  the 
property  in  the  hands  of  the  grantee  of  one  of  its  legal  incidents  and 
attributes,  namely,  its  alienability,  which  is  deemed  to  be  against  pub- 
lic policy.  But  the  reasons  of  the  rule  do  not  apply  in  the  case  of  a 
transfer  of  property  in  trust.  By  the  creation  of  a  trust  like  the  one 
before  us,  the  trust  property  passes  to  the  trustee  with  all  its  incidents 
and  attributes  unimpaired.  He  takes  the  whole  legal  title  to  the  prop- 
erty, with  the  power  of  alienation ;  the  cestui  que  trust  takes  the  whole 
legal  title  to  the  accrued  income  at  the  moment  it  is  paid  over  to  him. 
Neither  the  principal  nor  the  income  is  at  any  time  inalienable. 

The  question  whether  the  rule  of  the  common  law  should  be  applied 
to  equitable  life  estates  created  by  will  or  deed,  has  been  the  subject  of 
conflicting  adjudications  by  different  courts,  as  is  fully  shown  in  the 
able  and  exhaustive  arguments  of  the  counsel  in  this  case.  As  is  stat- 
ed in  Sparhawk  v.  Cloon,  above  cited,  from  the  time  of  Lord  Eldon 
the  rule  has  prevailed  in  the  English  Court  of  Chancery,  to  the  ex- 
tent of  holding  that  when  the  income  of  a  trust  estate  is  given  to  any 
person  (other  than  a  married  woman)  for  life,  the  equitable  estate  for 
life  is  alienable  by,  and  liable  in  equity  to  the  debts  of,  the  cestui  que 
trust,  and  that  this  quality  is  so  inseparable  from  the  estate  that  no 
provision,  however  express,  which  does  not  operate  as  a  cesser  or  lim- 
itation of  the  estate  itself,  can  protect  it  from  his  debts.  Brandon  v. 
Robinson,  18  Ves.  429;  Green  v.  Spicer,  1  Russ.  &  Myl.  395;  Roch- 
ford  V.  Hackman,  9  Hare,  475;  Trappes  v.  Meredith,  L.  R.  9  Eq. 
229 ;   Snowdon  v.  Dales,  6  Sim.  524 ;  Rippon  v.  Norton,  2  Beav.  63. 

The  English  rule  has  been  adopted  in  several  of  the  courts  of  this 
country.  Tillinghast  v.  Bradford,  5  R.  I.  205 ;  Heath  v.  Bishop,  4 
Rich.  Eq.  (S.  C.)  46,  55  Am.  Dec.  654;  Dick  v.  Pitchford,  1  Dev.  & 
Bat.  Eq.  (21  N.  C.)  480;  Mebane  v.  Mebane,  4  Ired.  Eq.  (39  N.  C.) 
131,  44  Am.  Dec.  102. 

Other  courts  have  rejected  it,  and  have  held  that  the  founder  of  a 
trust  may  secure  the  benefit  of  it  to  the  object  of  his  bounty,  by  pro- 
viding that  the  income  shall  not  be  alienable  by  anticipation,  nor  sub- 
ject to  be  taken  for  his  debts.  Holdship  v.  Patterson,  7  Watts  (Pa.) 
547;  Shankland's  Appeal,  47  Pa.  113;  Rife  v.  Geyer,  5,9  Pa.  393,  98 
Am.  Dec.  351;  White  v.  White,  30  Vt.  338;  Pope  v.  Elliott,  8  B. 
Mon.  (Ky.)  56;  Nichols  v.  Eaton,  91  U.  S.  716,  23  L.  Ed.  254;  Hyde 
V.  Woods,  94  U.  S.  523,  24  L.  Ed.  264. 

The  precise  point  involved  in  the  case  at  bar  has  not  been  adjudi- 
cated in  this  Commonwealth;  but  the  decisions  of  this  court  which 
we  have  before  cited  recognize  the  principle,  that,  if  the  intention  of 


Ch.  4)  RESTRAINTS   ON  ALIENATION  689 

the  founder  of  a  trust,  like  the  one  before  us,  is  to  give  to  the  equitable 
life  tenant  a  qualified  and  limited,  and  not  an  absolute,  estate  in  the  in- 
come, such  life  tenant  cannot  alienate  it  by  anticipation,  and  his  cred- 
itors cannot  reach  it  at  law  or  in  equity.  It  seems  to  us  that  this  prin- 
ciple extends  to  and  covers  the  case  at  bar.  The  founder  of  this  trust 
was  the  absokite  owner  of  his  property.  He  had  the  entire  right  to 
dispose  of  it,  either  by  an  absolute  gift  to  his  brother,  or  by  a  gift  with 
such  restrictions  or  limitations,  not  repugnant  to  law,  as  he  saw  fit 
to  impose.  His  clear  intention,  as  shown  in  his  will,  was  not  to  give 
his  brother  an  absolute  right  to  the  income  which  might  hereafter  ac- 
crue upon  the  trust  fund,  with  the  power  of  alienating  it  in  advance, 
but  only  the  right  to  receive  semi-annually  the  income  of  the  fund, 
which  upon  its  payment  to  him,  and  not  before,  was  to  become  his  ab- 
solute property.  His  intentions  ought  to  be  carried  out,  unless  they 
are  against  public  policy.  There  is  nothing  in  the  nature  or  tenure  of 
the  estate  given  to  the  cestui  que  trust  which  should  prevent  this.  The 
power  of  alienating  in  advance  is  not  a  necessary  attribute  or  incident 
of  such  an  estate  or  interest,  so  that  the  restraint  of  such  alienation 
would  introduce  repugnant  or  inconsistent  elements. 

We  are  not  able  to  see  that  it  would  violate  any  principles  of  sound 
public  policy  to  permit  a  testator  to  give  to  the  object  of  his  bounty 
such  a  qualified  interest  in  the  income  of  a  trust  fund,  and  thus  pro- 
vide against  the  improvidence  or  misfortune  of  the  beneficiary.  The 
only  ground  upon  which  it  can  be  held  to  be  against  public  policy  is, 
that  it  defrauds  the  creditors  of  the  beneficiary. 

It  is  argued  that  investing  a  man  with  apparent  wealth  tends  to 
mislead  creditors,  and  to  induce  them  to  give  him  credit.  The  answer 
is,  that  creditors  have  no  right  to  rely  upon  property  thus  held,  and  to 
give  him  credit  upon  the  basis  of  an  estate  which,  by  the  instrument 
creating  it,  is  declared  to  be  inalienable  by  him,  and  not  liable  for 
his  debts.  By  the  exercise  of  proper  diligence  they  can  ascertain  the 
nature  and  extent  of  his  estate,  especially  in  this  Commonwealth,  where 
all  wills  and  most  deeds  are  spread  upon  the  public  records.  There  is 
the  same  danger  of  their  being  misled  by  false  appearances,  and  induced 
to  give  credit  to  the  equitable  life  tenant  when  the  will  or  deed  of  trust 
provides  for  a  cesser  or  limitation  over,  in  case  of  an  attempted  aliena- 
tion, or  of  bankruptcy  or  attachment,  and  the  argument  would  lead  to 
the  conclusion  that  the  English  rule  is  equally  in  violation  of  public 
policy.  We  do  not  see  why  the  founder  of  a  trust  may  not  directly 
provide  that  his  property  shall  go  to  his  beneficiary  with  the  restriction 
that  it  shall  not  be  alienable  by  anticipation,  and  that  his  creditors  shall 
not  have  the  right  to  attach  it  in  advance,  instead  of  indirectly  reaching 
the  same  result  by  a  provision  for  a  cesser  or  a  limitation  over,  or  by 
giving  his  trustees  a  discretion  as  to  paying  it.  He  has  the  entire  jus 
disponendi,  which  imports  that  he  may  give  it  absolutely,  or  may  im- 
pose any  restrictions  or  fetters  not  repugnant  to  the  nature  of  the 
4  Kales  Prop. — 44 


nOO  ILLEGAL  CONDITIOXS  AND   RESTRAINTS  (Part  5 

estate  which  he  gives.  Under  our  system,  creditors  may  reach  all 
the  property  of  the  debtor  not  exempted  by  law,  but  they  cannot 
enlarge  the  gift  of  the  founder  of  a  trust,  and  take  more  than  he 
has  given. 

The  rule  of  public  policy  which  subjects  a  debtor's  property  to  the 
payment  of  his  debts,  does  not  subject  the  property  of  a  donor  to  the 
debts  of  his  beneficiary,  and  does  not  give  the  creditor  a  right  to  com- 
plain that,  in  the  exercise  of  his  absolute  right  of  disposition,  the  donor 
has  not  seen  fit  to  give  the  property  to  the  creditor,  but  has  left  it 
out  of  his  reach. 

Whether  a  man  can  settle  his  own  property  in  trust  for  his  own 
benefit,  so  as  to  exempt  the  income  from  alienation  by  him  or  attach- 
ment in  advance  by  his  creditors,  is  a  different  question,  which  we  are 
not  called  upon  to  consider  in  tliis  case.  But  we  are  of  opinion  that  any 
other  person,  having  the  entire  right  to  dispose  of  his  property,  may 
settle  it  in  trust  in  favor  of  a  beneficiary,  and  may  provide  that  it 
shall  not  be  alienated  by  him  by  anticipation,  and  shall  not  be  sub- 
ject to  be  seized  by  his  creditors  in  advance  of  its  payment  to  him. 

It  follows  that,  under  the  provisions  of  the  will  which  we  are  con- 
sidering, the  income  of  the  trust  fund  created  for  the  benefit  of  the 
defendant  Adams  cannot  be  reached  by  attachment,  either  at  law  or  in 
equity,  before  it  is  paid  to  him.^ 

Bill  dismissed. 


PACIFIC  BANK  v.  WINDRAM. 

(Supreme  Judicial  Court  of  Massachusetts,  1882.     133  Mass.  175.) 

Morton,  C.  J.  The  defendant,  Mrs.  Windram,  after  her  marriage, 
being  possessed  in  her  own  right  of  personal  property,  conveyed  it  to 
trustees  by  an  indenture  dated  in  March,  1879.  The  trusts  declared 
by  the  indenture  are,  that  the  trustees  are  to  pay  the  net  income  to 
her  semi-annually  during  her  life  "upon  her  sole  and  separate  order 
or  receipt,  the  same  not  to  be  by  way  of  anticipation,"  and  to  pay 
the  principal  to  her  children  upon  her  death,  or  when,  after  her  death, 
they  arrive  at  the  age  of  thirty  years,  except  as  to  a  sum  not  exceeding 

5  Accord:  Jourolmon  v.  Massengill,  8G  Tenu.  81,  5  S.  W.  719  (1887); 
Guernsey  v.  Lazear,  51  W.  Va.  328,  41  S.  E.  405  (1902). 

As  to  whether  the  restraint  on  alienation  can  be  attached  to  a  legal  life 
estate,  see  Gray,  Restraints  on  Alienation  (2d  Ed.)  §  135  et  seq. ;  also  But- 
terfield  v.  Reed,  160  Mass.  361,  35  N.  E.  1128  (1894). 

In  Boston  Safe  Deposit  &  Trust  Co.  v.  Luke,  220  Mass.  484,  108  N.  E. 
64,  L.  R.  A.  1917A,  988,  it  was  held  that  where  trustees  were  directed  to 
pay  a  certain  sum  to  the  testator's  daughter  during  her  life,  "said  income 
to  be  free  from  the  interference  or  control  of  her  creditors,"  and  where  the 
equitable  interest  was  assignable,  yet  her  trustee  in  bankruptcy  was  not  en- 
titled to  the  income,  but  the  tru.stee  under  the  will  was  required  to  pay  it  to 
her.  See,  also,  Hull  v.  Palmer.  213  N.  Y.  315,  107  N.  E.  653;  Siemers  v. 
Morris,  169  App.  Div.  411,  154  N.  Y.  Supp.  1001 ;  Eaton  v.  Boston  Trust  Co., 
240  U.  S.  427,  36  Sup.  Ct.  391,  60  L.  Ed.  723. 


Ch.  4)  RESTRAINTS   ON  ALIENATION  G91 

twenty-five  thousand  dollars,  over  which  she  retains  a  power  of  ap- 
pointment by  will. 

After  this  settlement  in  trust,  she  jointly  with  her  husband  bor- 
rowed a  large  sum  of  money  of  the  plaintiff,  and,  as  security  therefor, 
assigned  and  transferred  to  the  plaintiff,  by  an  instrument  in  which 
her  husband  joined,  all  her  right  and  interest  to  and  in  the  income  of 
said  trust  fund  accruing  under  the  said  indenture.  The  object  of  this 
bill  in  equity,  which  is  brought  under  the  Gen.  Sts.  c.  113,  §  2,  cl.  11, 
is  to  reach  and  apply,  in  payment  of  the  plaintiff's  debt,  the  income  to 
which  she  became  entitled  under  the  indenture  after  the  assignment  to 
the  plaintiff.  The  provision  that  the  trustees  are  to  pay  the  net  in- 
come to  her  upon  her  sole  receipt,  and  not  "by  way  of  anticipation," 
is  clearly  intended  to  restrain  the  power  of  the  cestui  que  trust  to 
alienate  the  income  in  advance ;  and  the  case  therefore  raises  the  ques- 
tion, whether  such  restraint  of  alienation  is  valid  as  against  subsequent 
creditors  or  purchasers  with  notice. 

It  was  decided  in  the  case  of  Broadway  National  Bank  v.  Adams, 
133  Alass.  170,  43  Am.  Rep.  504,  that  the  founder  of  a  trust  for  the 
benefit  of  another  may  by  suitable  provisions  restrain  the  power  of 
the  cestui  que  trust  to  alienate  the  income  by  anticipation,  and  protect 
the  income  from  the  claims  of  his  creditors  until  it  is  paid  over  to 
him.  In  that  case,  it  was  not  necessary  to  consider  whether  a  man 
could  settle  his  own  property  in  trust  to  pay  the  income  to  himself 
with  a  like  restraint  of  alienation  which  would  be  valid.  It  seems  to 
us  that  the  two  questions  are  quite  different. 

The  general  policy  of  our  law  is,  that  creditors  shall  have  the  right 
to  resort  to  all  the  property  of  the  debtor,  except  so  far  as  the  Statutes 
exempt  it  from  liability  for  his  debts.  But  this  policy  does  not  sub- 
ject to  the  debts  of  the  debtor  the  property  of  another,  and  is  not  de- 
feated when  the  founder  of  a  trust  is  a  person  other  than  the  debtor. 
In  such  case,  the  founder,  having  the  entire  jus  disponendi  in  disposing 
of  his  own  property,  sees  fit  to  give  to  his  beneficiary  a  qualified  and 
limited,  instead  of  an  absolute,  interest  in  the  income.  Creditors  of  the 
beneficiary  have  no  right  to  complain  that  the  founder  did  not  give 
his  property  for  their  benefit,  or  that  they  cannot  reach  a  greater  in- 
terest in  the  property  than  the  debtor  has,  or  ever  had.  But  when  a 
man  settles  his  property  upon  a  trust  in  his  own  favor,  with  a  clause 
restraining  his  power  of  alienating  the  income,  he  undertakes  to  put 
his  own  property  out  of  the  reach  of  his  creditors,  while  he  retains  the 
beneficial  use  of  it.  The  practical  operation  of  the  transaction  is,  that 
he  transfers  a  portion  only  of  his  interest,  retaining  in  himself  a  ben- 
eficial interest,  which  he  attempts  by  his  own  act  to  render  inalien- 
able by  himself  and  exempt  from  liability  for  his  debts. 

To  permit  a  man  thus  to  attach  to  a  valuable  interest  in  property 
retained  by  himself  the  quality  of  inalienability  and  of  exemption  from 
his  debts,  seems  to  us  to  be  going  further  than  a  sound  public  policy 


G92  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  5 

will  justify.  No  authorities  are  cited  in  favor  of  such  a  rule.  In 
England  it  is  the  settled  rule  that  the  founder  of  a  trust  in  favor  of 
a  third  person  (except  married  women)  cannot,  by  a  clause  restrain- 
ing alienation,  put  the  income  out  of  the  reach  of  the  creditors  of  the 
beneficiar}^     See  cases  cited  in  Broadway  National  Bank  v.  Adams. 

In  Pennsylvania,  where  the  English  rule  is  rejected,  and  the  same 
rule,  as  to  the  power  of  a  founder  of  a  trust  in  favor  of  a  third  per- 
son, adopted  by  us  in  Broadway  National  Bank  v.  Adams,  is  upheld, 
the  courts  yet  hold  that  a  person  cannot  so  settle  his  own  property  in 
trust,  as  to  put  his  right  to  the  income  retained  by  him  beyond  the 
reach  of  his  creditors,  by  a  provision  against  alienation  or  otherwise. 
Johnson  v.  Harvey,  2  Pen.  &  W.  (Pa.)  82,  21  Am.  Dec.  426;  Macka- 
son's  Appeal,  42  Pa.  330,  82  Am.  Dec.  517.  See,  also,  Lackland  v. 
Smith,  5  Mo.  App.  153.« 

It  is  true  that  a  man,  who  is  not  indebted,  may  by  a  voluntary  con- 
veyance made  in  good  faith  transfer  his  property  so  as  to  put  it  out 
of  the  reach  of  future  creditors.  When  a  man  transfers  a  trust  fund, 
of  which  the  income  is  to  be  paid  to  him  during  his  life,  and  the  prin- 
cipal at  his  death  to  be  paid  or  transferred  to  others,  the  principal  may 
be  beyond  the  reach  of  his  future  creditors ;  but  we  are  of  opinion 
that  his  right  to  the  income  which  he  retains  in  himself  may  be  alienat- 
ed by  him,  is  liable  for  his  debts,  and  may  be  reached  in  equity. 

Another  question,  not  free  from  difficulty,  arises  in  this  case,  and 
that  is  whether  this  rule  applies  in  the  case  of  a  conveyance  of  her 
property  in  trust  by  a  married  woman.  In  England,  where,  as  we 
have  before  said,  the  general  rule  is  that  restraints  of  alienation  in 
wills  or  deeds  are  invalid,  the  Court  of  Chancery  from  the  time  of  Lord 
Thurlow  has  recognized  an  exception  to  the  rule  in  favor  of  married 
women.  Parkes  v.  White,  11  Ves.  209;  Jackson  v.  Hobhouse,  2  Aleriv. 
483 ;  Woodmeston  v.  Walker,  2  Russ.  &  J\lyl.  197.  Numerous  other 
cases  might  be  cited. '^ 


6  Accord:  Requa  v.  Graham,  187  111.  67,  58  N.  E.  357,  52  L.  R  A.  641  (1900). 
In  Holmes  v.  Penny,  3  K.  &  J.  90,  100,   Sir  W.  Page  Wood,  V.  C,  said: 

"I  will  in  this  case  first  consider  whether  a  deed,  merely  voluntary,  is 
fraudulent  against  subsequent  creditors,  from  the  fact  that  it  contains  a 
trust  to  apply  the  interest  of  the  property  in  such  manner  as  the  trustees 
should  think  fit,  towards  the  benefit  of  the  settlor  or  his  wife  or  children. 
In  such  a  case,  the  instrument  being  merely  voluntary,  the  intention  may 
have  been  to  take  the  property  from  the  creditors,  and  it  may  be  requisite 
to  have  the  transaction  fully  investigated ;  but,  supposing  the  settlor  to 
have  parted  bona  fide,  by  the  deed,  with  all  the  control  over  his  property, 
and  to  have  vested  it  in  the  trustees,  in  order  to  give  them  the  absolute 
power  to  deal  with  it  as  they  please  for  the  benefit  of  himself  or  his  wife 
or  children,  that  could  not  be  held  to  be  fraudulent  against  subsequent 
creditors  of  the  settlor,  any  more  than  if  it  were  a  settlement  simply  for 
the  benefit  of  the  wife  and  children  of  the  settlor.  The  distinction  is  too 
thin  to  authorize  the  Court  to  decide,  that,  because  the  settlor  may  possibly 
derive  some  benefit  under  it.  the  settlement  must  therefore  be  fraudulent. 
That  I  conceive  would  be  the  law  if  this  settlement  were  voluntary." 

7  See  ante,  p.  650. 


Ch.  4)  RESTRAINTS   ON   ALIENATION  693 

The  reason  of  the  exception  is,  that  a  married  woman  is  not  sui 
juris,  and  that  such  a  restraint  of  her  power  of  ahenation  is  neces- 
sary as  a  protection  to  her  against  the  coercion  and  influence  of  her 
husband. 

By  the  common  law  of  England,  a  married  woman  could  not  hold 
any  separate  property.  The  settlement  upon  her  by  means  of  a  trust 
of  an  equitable  separate  estate,  was  the  invention  of  equity,  and  the 
Court  of  Chancery  allowed  the  clause  against  anticipation,  in  order  to 
give  full  effect  to  the  estate  itself,  and  to  secure  to  her,  free  from  the 
influence  of  the  husband,  the  benefit  intended  by  the  settler. 

But  the  legislation  of  this  Commonwealth  has  essentially  changed  the 
common  law  status  of  a  married  woman,  especially  in  respect  to  her 
holding  separate  property.  By  our  Statutes,  a  married  woman  is  now 
enabled  to  take,  hold,  manage  and  dispose  of  property,  to  make  con- 
tracts, and  to  sue  and  be  sued,  in  the  same  manner  as  if  she  were  sole. 
Pub.  Sts.  c.  147.  Except  as  to  dealings  with  her  husband,  she  is  made 
a  person  sui  juris.  The  Statute  intends,  what  it  declares,  that  she 
shall  hold  her  separate  property  in  the  same  manner  as  if  she  were 
sole,  with  the  same  rights  and  privileges,  and  also  subject  to  the  same 
rules,  responsibilities  and  liabilities,  as  a  feme  sole. 

Courts  of  equity  upheld  the  restraint  of  alienation  in  favor  of  a 
married  woman  because  of  her  disability  during  coverture,  and  as  an 
incident  of  the  trust  estate  necessary  for  her  protection.  The  Stat- 
utes having  removed  her  disability,  and  having  made  unnecessary  the 
creation  of  a  trust  estate,  the  incidents  of  the  trust  estate  and  the 
equitable  rights  growing  out  of  it  no  longer  remain  in  her  favor.  She 
is  put  upon  the  same  footing  as  if  she  were  a  feme  sole.  She  no 
longer  needs  any  protection  against  the  marital  rights  of  her  husband. 
It  is  argued  that  she  still  needs  protection  against  his  persuasion  and 
undue  influence.  The  Statutes  have  made  such  provisions  as  were 
deemed  necessary  to  meet  this  danger,  by  providing  that,  upon  her 
application  to  the  Supreme  Judicial  Court,  a  trustee  may  be  appoint- 
ed, and  she  may  thereupon  convey  her  separate  estate  to  the  trustee 
upon  such  trusts  and  to  such  uses  as  she  may  declare.  Pub.  Sts.  c. 
147,  §  13. 

For  these  reasons,  we  are  of  opinion  that  the  provision  in  the  in- 
denture of  ]\Iarch,  1879.  intended  to  restrain  Airs.  Windram's  power 
of  alienating  the  income  of  the  trust  fund,  is  invalid ;  and  that  the 
plaintiff  is  entitled  to  the  income  after  the  assignment  to  it,  or  after 
notice  thereof  was  given  to  the  trustees,  if  they  have  paid  it  to  Airs. 
Windram  before  such  notice. 

We  need  not  consider  what  effect  the  modification  of  the  trusts  made 
in  September,  1880,  may  have  upon  the  rights  of  other  parties.  By 
this  modification,  the  trustees,  instead  of  paying  the  income  to  Mrs. 
Windram,  were  to  disburse  it  for  her  benefit,  as  they  should  see  fit. 
It  is  clear  that  it  would  be  a  gross  fraud  to  allow  it  to  defeat  the  rights. 


694  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  5 

of  the  plaintiff  under  its  prior  assignment,  and  the  presiding  justice 
who  heard  the  case  rightly  ruled  that  it  was  incompetent  and  imma- 
terial as  against  the  plaintiff. 

The  result  is,  that  the  plaintiff*  is  entitled  to  a  decree,  the  terms  of 
which  must  be  settled  before  a  single  justice. 

Decree  for  the  plaintiff.^ 

8  Accord:  Jackson  v.  Von  ZecUitz,  136  Mass.  342  (1884),  settlement  be- 
fore marriage,  but  in  contemplation  of  marriage;  Brown  v.  Macgill,  87 
Md.  161,  39  Atl.  613,  39  L.  R.  A.  806,  67  Am.  St.  Rep.  334  (1898). 

Contra:  Hutchinson  v.  Maxwell,  100  Va.  169,  40  S.  E.  655,  57  L.  R.  A.  384, 
93  Am.  St.  Rep.  944  (1902). 


Ch.  5)  INDESTRUCTIBLE  TRUSTS  695 


CHAPTER  V 

INDESTRUCTIBLE   TRUSTS   OF   ABSOLUTE    AND   INDE- 
FEASIBLE EQUITABLE  INTERESTS 


SAUNDERS  V.  VAUTIER. 
(High  Court  of  Chancery,  1841.    1  Charg.  &  P.  240.) 

See  ante,  page  214,  for  a  report  of  this  case.^ 


OPPENHEIM  V.  HENRY. 
(Court  of  Chancery,  1S53.     10  Hare,  441.) 

See  ante,  p.  268,  for  a  report  of  this  case. 


SANFORD  V.  LACKLAND. 

(United  States  Circuit  Court  for  the  District  of  Missouri,  1871.     2  DiU.  6, 

Fed.  Cas.  Xo.  12,312.) 

Appeal  from  the  District  Court  of  the  United  States  for  the  Eastern 
District  of  Missouri. 

The  plaintiff  is  the  assignee  in  bankruptcy  of  Wm.  C.  Hill.  The 
defendants  are  Wm.  C.  Hill,  Lackland  and  Clark,  the  executors  and 
trustees  named  in  the  will  of  James  B.  Hill,  and  Edwards,  trustee  in  a 
deed  of  trust  for  the  benefit  of  ^lathews,  executed  by  William  C.  Hill 
on  the  property  in  controversy.  The  question  in  the  case  is,  whether, 
subject  to  the  IMathews'  deed  of  trust,  the  assignee  in  bankruptcy  is 
entitled  to  the  interest  and  right  of  William  C.  Hill  in  the  property 
held  by  the  executors  or  trustees  named  in  his  father's  will,  consisting 
of  stocks,  notes,  and  real  estate.  The  essential  facts  are  these:  In 
1862,  James  B.  Hill,  the  father,  died,  leaving  five  children,  three  sons 
and  two  daughters.  His  will,  admitted  to  probate  in  March,  1862,  so 
far  as  material  to  the  present  controversy,  is  in  these  words :  "All  the 
residue  of  my  estate,  real,  personal,  and  mixed,  I  give,  devise,  and  be- 
queath unto  Rufus  J.  Lackland  and  William  G.  Clark,  and  to  the  sur- 
vivor of  them,  as  trustees,  in  trust,  however,  to  manage,  control,  and 
improve  the  said  estate;    to  receive  and  collect  the   debts   due  me; 

1  See,  also,  Wharton  v.  Masterman,  L.  R.  [1895]  App.  Cas.  186. 


69G  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  5 

to  receive  and  collect  the  rents,  issues,  and  profits  of  said  property; 
to  reinvest  any  money  that  may  come  into  their  hands  as  they  may 
deem  best  or  therewith  improve  any  unimproved  real  estate,  to  rent 
or  l^ase  any  portion  of  said  real  estate;  and  I  do  hereby  invest  them 
with  full  and  complete  authority  to  sell  and  convey  in  fee  simple 
any  of  my  real  estate,  and  to  reinvest  the  proceeds  of  such  sales  in 
other  real  estate,  or  otherwise,  in  their  discretion,  and  in  trust,  as 
aforesaid,  to  manage,  control,  and  keep  together,  my  said  property 
as  one  entire  whole ;  and  as  I  now  have  five  children,  to  wit — James  B. 
Hill,  William  C.  Hill,  Anna  M.  Hill,  Frank  W.  Hill,  and  Mary  Hill, 
upon  the  further  trust.  First,  Until  my  children  respectively  arrive 
at  the  age  of  twenty-one  years,  or  get  married,  to  provide  for  their 
support,  maintenance,  and  education  out  of  said  estate,  which  support, 
maintenance,  and  education  is  to  be  taken  as  part  of  the  expenses  of  my 
estate;  Second.  My  said  trustees  shall,  out  of  my  said  estate,  pay  to 
each  one  of  my  children  (if  in  their  opinion  such  advancement  shall 
not  probably  amount  to  more  than  the  equitable  share  of  such  child  in 
my  estate)  as  they  respectively  arrive  at  the  age  of  twenty-one  years, 
the  sum  of  ten  thousand  dollars  as  an  advancement,  and  shall,  from 
the  time  of  such  advancement,  charge  such  child  with  interest  thereon 
at  the  rate  of  six  per  cent  per  annum,  if  such  advancement  be  made  be- 
fore the  partition  hereinafter  mentioned ;  Third.  When  my  eldest 
child-  shall  arrive  at  the  age  of  twenty-six  years,  or  if  he  shall  not  so 
long  live,  then  when  the  next  oldest  surviving  child  shall  attain  that 
age,  my  said  trvistees  shall,  with  the  approval  of  the  Probate  Court  of 
St.  Louis  County,  make  a  partition  of  all  said  trust  estate  among  my 
said  children,  share  and  share  alike,  charging,  however,  in  such  divi- 
sion and  partition,  any  child  whO'  may  have  received  an  advancement 
as  before  mentioned,  with  such  advancement,  with  interest  tliereon 
from  the  time  when  received  as  part  and  portion  of  the  share  coming 
to  such  child,  and  upon  such  partition  shall  forthwith  convey  to  such 
eldest  child,  if  such  eldest  child  be  a  son,  the  portion  allotted  to  him  in 
absolute  property,  but  shall  hold  the  shares  and  portions  of  the  others 
of  said  children  until  they  severally  arrive  at  the  age  of  twenty-six 
years ;  and  as  the  sons  severally  arrive  at  that  age  they  shall  convey  to 
them  the  share  and  portion  allotted  to  such  son  in  absolute  property." 
[And  then  follows  a  similar  provision  as  to  the  share  of  the  estate 
coming  to  the  daughters.]  "After  the  said  partition  shall  have  been 
made,  my  said  trustees  shall  keep  the  portion  and  share  of  each  of  my 
children  separate  (except  as  before),  with  the  rents,  issues,  and  profits 
belonging  to  such  portion." 

On  January  29,  1870,  James  B.,  the  eldest  son,  became  twenty-six 
years  of  age,  and  thereupon  the  trustees  in  the  will,  with  the  approval 
of  the  Probate  Court,  made  partition  of  all  the  property  held  in  trust 
among  all  of  the  children,  and  there  was  an  order  of  distribution  in 
accordance  with  the  terms  of  the  will.     The  property  allotted  and  set 


Ch.  5)  INDESTRUCTIBLE   TRUSTS  697 

apart  to  the  said  William  C.  Hill  consisted  of  specified  stocks  in  certain 
banks,  promissory  notes,  and  real  estate,  which  are  still  in  the  posses- 
sion and  custody  of  the  trustees.  On  July  6,  1870,  William  C.  Hill 
executed  a  deed  of  trust  on  the  property  which  had  been  allotted  to 
him  to  Edwards,  trustee  for  Mathews,  to  secure  ten  thousand  dollars, 
which  is  yet  unpaid.  The  trustees  under  the  will  advanced  to  William 
C.  the  ten  thousand  dollars  on  his  becoming  twenty-one  years  of  age. 
On  November  28,  1870,  a  petition  for  adjudication  in  bankruptcy  was 
filed  against  him,  and  he  was  adjudged  a  bankrupt.  The  property  in 
the  hands  of  the  trustees  belonging  to  him  is  of  the  value  of  $30,760, 
and  he  is  now  between  twenty-four  and  twenty-five  years  of  age. 

The  bill  sets  out  the  foregoing  facts,  and  prays  that  the  property  in 
the  hands  of  the  trustees  allotted  to  William  C.  Hill  may,  subject  to 
the  encumbrance  of  Mathews,  be  decreed  to  belong  to  the  assignee  in 
bankruptcy.  The  District  Court  overruled  a  demurrer  to  the  bill,  and 
entered  a  decree  as  prayed.    The  trustees  and  the  bankrupt  appeal. 

Cline,  Jamison  &  Day,  for  the  complainant. 

Slayback  &  Haussler,  and  Lackland,  Martin  &  Lackland,  for  the 
defendants. 

Dillon,  Circuit  Judge.  The  share  of  the  bankrupt  in  his  father's 
estate  has  been  duly  ascertained  and  set  apart  in  severalty  to  him,  but 
with  the  exception  of  tlie  ten  thousand  dollars  advanced  on  his  attain- 
ing his  majority  is  yet  in  the  hands  of  the  trustees,  as  he  was  not 
twenty-six  years  of  age  at  the  time  he  was  adjudicated  a  bankrupt. 
By  the  bankrupt  law,  all  the  property  of  the  bankrupt,  with  certain 
exemptions  not  necessary  to  be  noticed,  vests  in  the  assignee  (sec.  14) ; 
and  if  William  C.  Hill  owned  or  had  a  beneficial  interest  in  the  proper- 
ty in  the  hands  of  the  trustees,  it  passed  under  the  bankruptcy.  That 
he  was  the  owner  of  the  property  which  had  been  allotted  to  him  under 
the  will  can  scarcely  admit  of  a  doubt.  The  will  directs  a  partition  of 
the  trust  estate  to  be  made  among  the  children,  and  this  has  been  done, 
but  it  also  provides  that  the  trustees  shall  hold  the  shares  of  the  chil- 
dren until  the  sons  shall  severally  arrive  at  the  age  of  twenty-six  years, 
when  they  are  directed  to  convey  to  such  son  his  portion  in  absolute 
property. 

This  is  not  the  case  of  a  legacy  or  gift  to  vest  if  the  legatee  shall 
arrive  at  a  specified  age  which  has  not  yet  been  reached.  Nor  is  the 
devise  or  gift  to  the  son  made  on  any  condition ;  there  is  no  limita- 
tion over  in  case  the  son  shall,  before  attaining  the  age  of  twenty-six, 
become  a  bankrupt.  If  William  C.  had  not  been  adjudged  a  bankrupt, 
and  had  died  intestate  before  reaching  the  age  of  twenty-six,  can  it  be 
doubted  that  his  heirs  would  have  taken  the  estate?  It  has  not  been 
questioned,  nor  could  it  be,  that  he  had  the  power  to  mortgage  this 
property  for  the  money  borrowed  of  Mathews.  If  the  intention  of  the 
testator  was  to  prevent  the  property  from^  being  liable  for  the  debts  of 
his  son,  his  will  fails  to  express  that  intention.     The  testator  might 


698  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  5 

have  provided  if  the  son  should  become  bankrupt  before  reaching 
twenty-six,  that  his  estate  should  then  determine  and  go  somewhere 
else;  but  he  cannot  give  the  beneficial  interest  and  annex  to  it  the 
inconsistent  condition  that  it  shall  not  be  liable  for  the  debts  of  the 
devisee.  And  in  fact  the  father  has  not  attempted  to  do  this.  The 
estate  is  given,  and  the  only  limitation  expressed  in  the  will  is  that  the 
trustees  shall  hold  it  and  its  accumulations  until  he  shall  reach  the 
specified  age.  The  trustees  have  no  beneficial  interest  in  the  estate 
they  hold.  By  operation  of  the  bankruptcy,  William  C.  Hill  has  no 
longer  any  interest  in  it.  It  belongs  to  and  is  vested  in  the  assignee 
for  the  benefit  of  creditors.  The  trustees  now  hold  the  property  in 
trust  for  the  benefit  of  these  creditors,  and  as  the  strict  execution  of  the 
trusts  in  the  will  have  been  thus  rendered  impossible,  the  court  properly 
decreed  that  the  property  held  by  the  trustees  for  the  bankrupt  should, 
subject  to  the  Mathews  encumbrance,  be  conveyed  to  the  assignee  in 
bankruptcy. 

The  decree  of  the  court  is  affirmed.  v 

Affirmed. 

KrDksl,,  J.,  concurs. 


CLAFLIN  v.  CLAFLIN. 

(S-upreme  Judicial  Court  of  Massachusetts,  1889.    149  Mass.  19,  20  N.  E.  454, 
3  L.  R.  A.  370,  14  Am.  St.  Rep.  393.) 

Bill  in  equity,  filed  November  3,  1888,  to  terminate  a  trust  for  the 
benefit  of  the  plaintiff  under  the  will  and  codicil  of  his  father,  Wilbur 
F.  Claflin,  in  the  residue  of  his  estate,  against  the  trustees  under  the 
will  and  the  plaintiff's  mother  and  brother.  The  answer  of  the  mother 
and  brother  admitted  that  the  plaintiff  had  the  entire  beneficial  inter- 
est in  the  principal  and  income  of  that  portion  of  the  trust  fund  held 
in  trust  for  him,  and  made  no  claim  to  the  same  adverse  to  his  right. 
Hearing  before  W.  Allen,  J.,  who  ordered  the  bill  to  be  dismissed; 
and  the  plaintiff  appealed  to  the  full  court.  The  case,  so  far  as  ma- 
terial, is  as  follows : 

Wilbur  F.  Claflin  at  his  death  left  a  widow  and  two  sons,  of  whom 
the  plaintiff  was  a  minor.  The  will,  which  was  dated  July  27,  1885, 
and  named  William  Claflin,  James  A.  Woolson,  and  Horatio  Newhall 
as  executors  and  trustees,  provided  in  the  second  clause  that  the  sum 
of  $50,000  might  remain  in  the  hands  of  one  of  the  executors  for  the 
period  of  five  years,  the  income  during  that  time  to  be  equally  divided 
between  the  wife  and  the  two  sons,  the  principal  at  the  end  of  that 
period  to  fall  into  the  residue  of  the  estate  ;  in  the  sixth  clause,  that  a 
trust  company  should  hold  $100,000  in  trust  to  pay  the  net  income  of 
three  several  sums  of  $30,000  to  the  wife  and  sons  during  their  lives, 
and  to  pay  over  the  principal  of  such  sums  at  their  death,  as  they 
should  appoint  by  will ;  in  the  ninth  clause,  that  the  persons  named  as 


Ch.  5)  INDESTRUCTIBLE   TRUSTS  699 

executors  and  trustees  in  the  will  should  hold  $60,000  to  pay  the  net 
income  of  $20,000  to  his  wife  for  five  years,  and  if  she  should  die  be- 
fore the  end  of  that  time,  to  pay  over  the  principal  as  she  should  ap- 
point by  will,  or  if  she  should  live  to  the  end  of  that  period,  to  pay  it 
over  to  her,  and  further  to  pay  to  each  son  the  net  income  of  $20,000 
for  ten  years,  and,  if  either  of  them  should  die  before  the  end  of  that 
time,  to  pay  over  that  amount  as  he  should  appoint  by  will,  or,  if  either 
of  them  should  live  to  the  end  of  that  period,  to  pay  it  over  to  him ; 
and  in  the  eleventh  clause  as  follows : 

"Eleventh.  All  the  rest  and  residue  of  all  my  personal  estate  I  give, 
bequeath,  and  devise  to  William'  Claflin,  James  A.  Woolson,  and 
Horatio  Xewhall,  all  aforesaid,  and  to  the  survivors  of  them,  but  in 
trust  nevertheless  for  the  purposes  following,  viz. :  to  sell  and  dispose 
of  the  same,  and  to  divide  the  proceeds  equally  among  my  wife,  ^lary 
A.  Clafiin,  Clarence  A.  Claflin,  my  son,  and  Adelbert  E.  Claflin,  my 
son,  or  their  heirs  by  representation." 

The  codicil,  which  was  dated  August  6,  1885,  provided  that,  "Where- 
as in  item  'eleventh'  in  said  will  I  directed  the  three  trustees  therein 
named,  viz.  William  Claflin,  James  A.  Woolson,  and  Horatio  Newhall, 
'to  sell  and  dispose  of  the  same,  and  to  divide  the  proceeds  equally 
among  my  wife,  ]\Iary  A.  Claflin,  Clarence  A.  Claflin,  my  son,  and 
Adelbert  E.  Claflin,  my  son,  or  their  heirs  by  representation,'  now  then 
I  revoke  and  annul  the  provision  of  said  will  as  above  set  forth,  and 
instead  thereof  I  declare  the  trust  in  the  words  following,  which  words 
are  to  be  taken  as  a  part  of  said  will  instead  of  the  words  revoked  and 
annulled,  viz. :  to  sell  and  dispose  of  the  same,  and  to  pay  to  my  wife, 
Alary  A.  Claflin,  one  third  part  of  the  proceeds  thereof,  and  to  pay  to 
my  son  Clarence  A.  Claflin  one  third  part  of  the  proceeds  thereof,  and 
to  pay  the  remaining  one  third  part  thereof  to  my  son  Adelbert  E. 
Claflin,  in  the  manner  following,  viz.  ten  thousand  dollars  when  he  is 
of  the  age  of  twenty-one  years,  ten  thousand  dollars  when  he  is  of  the 
age  of  twenty-five  years,  and  the  balance  when  he  is  of  the  age  of 
thirty  years." 

The  will  and  codicil  were  duly  admitted  to  probate,  and  the  execu- 
tors proceeded  to  settle  the  estate  according  to  their  terms  ;  and  when 
the  plaintiff  reached  the  age  of  twenty-one  years  the  trustees  paid  over 
to  him  the  sum  of  $10,000. 

The  plaintiff  contended  that  he  had  the  entire  beneficial  interest 
both  in  the  income  of  the  third  part  of  the  rest  and  residue  of  the  es- 
tate and  in  the  property  itself,  and  that  no  reasons  existed  why  the 
same  should  be  longer  held  by  the  trustees,  as  such  further  holding 
caused  him  unnecessary  inconvenience  and  expense. 

Field,  J.  By  the  eleventh  article  of  his  will  as  modified  by  a  codi- 
cil, Wilbur  F.  Claflin  gave  all  the  residue  of  his  personal  estate  to 
trustees,  "to  sell  and  dispose  of  the  same,  and  to  pay  to  my  wife,  Mary 
A,  Claflin,  one  third  part  of  the  proceeds  thereof,  and  to  pay  to  my  son 


700  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  5 

the  remaining  one  third  part  thereof  to  my  son  Adelbert  E.  Claflin,  in 
the  manner  following,  viz.  ten  thousand  dollars  when  he  is  of  the  age 
of  twenty-one  years,  ten  thousand  dollars  when  he  is  of  the  age  of 
twenty-five  years,  and  the  balance  when  he  is  of  the  age  of  thirty 
years.'' 

Apparently,  Adelbert  E.  Claflin  was  not  quite  twenty-one  years  old 
when  his  father  died,  but  he  some  time  ago  reached  that  age  and  re- 
ceived ten  thousand  dollars  from  the  trust.  He  has  not  yet  reached 
the  age  of  twenty-five  years,  and  he  brings  this  bill  to  compel  the  trus- 
tees to  pay  to  him  the  remainder  of  the  trust  fund.  His  contention  is, 
in  effect,  that  the  provisions  of  the  will  postponing  the  payment  of  the 
money  beyond  the  time  when  he  is  twenty-one  years  old  are  void. 
There  is  no  doubt  that  his  interest  in  the  trust  fund  is  vested  and  abso- 
lute, and  that  no  other  person  has  any  interest  in  it,  and  the  weight 
of  authority  is  undisputed  that  the  provisions  postponing  payment  to 
him  until  some  time  after  he  reaches  the  age  of  twenty-one  years  would 
be  treated  as  void  by  those  courts  which  hold  that  restrictions  against 
the  alienation  of  absolute  interests  in  the  income  of  trust  property  are 
void.  There  has,  indeed,  been  no  decision  of  this  question  in  England 
by  the  House  of  Lords,  and  but  one  by  a  Lord  Chancellor,  but  there 
are  several  decisions  to  this  effect  by  Masters  of  the  Rolls  and  by  Vice- 
Chancellors.  The  cases  are  collected  in  Gray's  Restraints  on  Aliena- 
tion, §§  106-112,  and  Appendix  H.  See  Josselyn  v.  Josselyn,  9  Sim. 
63;  Saunders  v.  Vautier,  4  Beav.  115,  and,  on  appeal,  Or.  &  Ph.  240; 
Rocke  V.  Rocke,  9  Beav.  66;  In  re  Young's  Settlement,  18  Beav.  199; 
In  re  Jacob's  Will,  29  Beav.  402;  Gosling  v.  Gosling,  H.  R.  V.  Johns. 
265 ;  Turnage  v.  Greene,  2  Jones  Eq.  (55  N.  C.)  63,  62  Am.  Dec.  208; 
Battle  V.  Petway,  5  Ired.  (27  N.  C.)  576,  44  Am.  Dec.  59. 

These  decisions  do  not  proceed  on  the  ground  that  it  was  the  inten- 
tion of  the  testator  that  the  property  should  be  conveyed  to  the  bene- 
ficiary on  his  reaching  the  age  of  twenty-one  years,  because  in  each 
case  it  was  clear  that  such  w^as  not  his  intention,  but  on  the  ground 
that  the  direction  to  withhold  the  possession  of  the  property  from  the 
beneficiary  after  he  reached  his  majority  was  inconsistent  with  the  ab- 
solute rights  of  property  given  him  by  the  will. 

This  court  has  ordered  trust  property  to  be  conveyed  by  the  trustee 
to  the  beneficiary  when  there  was  a  dry  trust,  or  when  the  purposes 
of  the  trust  had  been  accomplished,  or  when  no  good  reason  was 
shown  why  the  trust  should  continue,  and  all  the  persons  interested  in 
it  w^ere  sui  juris  and  desired  that  it  be  terminated ;  but  we  have  found 
no  expression  of  any  opinion  in  our  reports  that  provisions  requiring 
a  trustee  to  hold  and  manage  the  trust  property  until  the  beneficiary 
reached  an  age  beyond  that  of  twenty-one  years  are  necessarily  void 
if  the  interest  of  the  beneficiary  is  vested  and  absolute.  See  Smith  v. 
Harrington,  4  Allen,  566;  Bowditch  v.  Andrew,  8  Allen,  339;  Russell 
V.  Grinnell,  105  Mass.  425 ;  Inches  v.  Hill,  106  Mass.  575 ;  Sears  v. 
Choate,  146  Mass.  395,  15  N.  E.  786,  4  Am.  St.  Rep.  320.    This  is  not 


Ch.  5)  INDESTRUCTIBLE  TRUSTS  701 

a  dry  trust,  and  the  purposes  of  the  trust  have  not  been  accomplished 
if  the  intention  of  the  testator  is  to  be  carried  out. 

In  Sears  v.  Choate  it  is  said,  "Where  property  is  given  to  certain 
persons  for  their  benefit,  and  in  such  a  manner  that  no  other  person 
has  or  can  have  any  interest  in  it,  they  are  in  effect  the  absolute  own- 
ers of  it,  and  it  is  reasonable  and  just  that  they  should  have  the  con- 
trol and  disposal  of  it  unless  some  good  cause  appears  to  the  con- 
trary." In  that  case  the  plaintifT  was  the  absolute  owner  of  the  whole 
property,  subject  to  an  annuity  of  ten  thousand  dollars  payable  to  him- 
self. The  whole  of  the  principal  of  the  trust  fund,  and  all  of  the  in- 
come not  expressly  made  payable  to  the  plaintiff,  had  become  vested 
in  him  when  he  reached  the  age  of  twenty-one  years,  by  way  of  result- 
ing trust,  as  property  undisposed  of  by  the  will.  Apparently  the  tes- 
tator had  not  contemplated  such  a  result,  and  had  made  no  provision 
for  it,  and  the  court  saw  no  reason  why  the  trust  should  not  be  termi- 
nated, and  the  property  conveyed  to  the  plaintiff. 

In  Inches  v.  Hill,  ubi  supra,  the  same  person  had  become  owner  of 
the  equitable  life  estate  and  of  the  equitable  remainder,  and  "no  reason 
appearing  to  the  contrary,"  the  court  decreed  a  conveyance  by  the 
trustees  to  the  owner.  See  Whall  v.  Converse,  146  Mass.  345,  15  N. 
E.  660. 

In  the  case  at  bar  nothing  has  happened  which  the  testator  did  not 
anticipate,  and  for  which  he  has  not  made  provision.  It  is  plainly  his 
will  that  neither  the  income  nor  any  part  of  the  principal  should  now 
be  paid  to  the  plaintiff.  It  is  true  that  the  plaintiff's  interest  is  aliena- 
ble by  him,  and  can  be  taken  by  his  creditors  to  pay  his  debts,  but  it 
does  not  follow  that,  because  the  testator  has  not  imposed  all  possible 
restrictions,  the  restrictions  which  he  has  imposed  should  not  be  car- 
ried into  effect. 

The  decision  in  Broadway  National  Bank  v.  Adams,  133  Mass.  170, 
43  Am.  Rep.  504,  rests  upon  the  doctrine  that  a  testator  has  a  right  to 
dispose  of  his  own  property  with  such  restrictions  and  limitations,  not 
repugnant  to  law,  as  he  sees  fit,  and  that  his  intentions  ought  to  be 
carried  out  unless  they  contravene  some  positive  rule  of  law,  or  are 
against  public  policy.  The  rule  contended  for  by  the  plaintiff  in  that 
case  was  founded  upon  the  same  considerations  as  that  contended  for 
by  the  plaintiff  in  this,  and  the  grounds  on  which  this  court  declined 
to  follow  the  English  rule  in  that  case  are  applicable  to  this,  and  for 
the  reasons  there  given  we  are  unable  to  see  that  the  directions  of  the 
testator  to  the  trustees,  to  pay  the  money  to  the  plaintiff  w^hen  he 
reaches  the  age  of  twenty-five  and  thirty  years,  and  not  before,  are 
against  public  policy,  or  are  so  far  inconsistent  with  the  rights  of  prop- 
erty given  to  the  plaintiff  that  they  should  not  be  carried  into  effect. 
It  cannot  be  said  that  these  restrictions  upon  the  plaintiff's  possession 
and  control  of  the  property  are  altogether  useless,  for  there  is  not  the 
same  danger  that  he  will  spend  the  property  while  it  is  in  the  hands  of 
the  trustees  as  there  would  be  if  it  were  in  his  own. 


702  ILLEGAL  CONDITIONS  AND  RESTRAINTS  (Part  5 

In  Sanford  v.  Lackland,  2  Dill.  6,  Fed.  Cas.  No.  12,312,  a  beneficiary 
who  would  have  been  entitled  to  a  conveyance  of  trust  property  at  the 
age  of  twenty-six  became  a  bankrupt  at  the  age  of  twenty-four,  and  it 
was  held  that  the  trustees  should  convey  his  interest  immediately  to 
his  assignee,  as  "the  strict  execution  of  the  trust  in  the  will  have  been 
thus  rendered  impossible."  But  whether  a  creditor  or  a  grantee  of  the 
plaintifif  in  this  case  would  be  entitled  to  the  immediate  possession  of 
the  property,  or  would  only  take  the  plaintiff's  title  sub  modo,  need 
not  be  decided.  The  existing  situation  is  one  which  the  testator  man- 
ifestly had  in  mind  and  made  provision  for ;  the  strict  execution  of  the 
trust  has  not  become  impossible ;  the  restriction  upon  the  plaintiff's 
possession  and  control  is,  we  think,  one  that  the  testator  had  a  right 
to  make ;  other  provisions  for  the  plaintiff  are  contained  in  the  will, 
apparently  sufificient  for  his  support,  and  we  see  no  good  reason  why 
the  intention  of  the  testator  should  not  be  carried  out.  Russell  v. 
Grinnell,  105  Mass.  425.  See  Toner  v.  Collins,  67  Iowa,  369,  25  N.  W. 
287,  56  Am.  Rep.  346;  Rhoads  v.  Rhoads,  43  111.  239;  Lent  v.  How- 
ard, 89  N.  Y.  169;  Barkley  v.  Dosser,  15  Lea  (Tenn.)  529;  Car- 
michael  v.  Thompson,  5  Cent.  Rep.  500;  Lampert  v.  Hay  del,  20  Mo. 
App.  616. 

Decree  affirmed.^ 

2  Accord:  Lunt  v.  Lunt,  108  111.  307;  King  v.  Shdton,  36  App.  D.  O.  1 
(1910).     See  Kales'  Future  Interests  (Illinois,  1905)  8§  2S9,  294. 

In  Parker  v.  Cobe,  208  Mass.  260,  91  N.  E.  476,  33  L.  R.  A.  (N.  S.)  978, 
21  Ann.  Cas.  1100  (1911),  it  was  held,  following  the  rule  of  the  English  cases, 
that  where  a  trustee  was  directed  to  lay  out  a  given  sum  in  the  purchase 
of  an  annuity  for  A.,  A.  could  require  the  payment  of  that  sum  directly  to 
him.  The  court,  by  Loring,  J.,  said :  "The  case  at  bar  is  not  a  case  where 
$75,000  was  left  upon  the  trust  that  the  income  of  it  should  be  paid  to 
Ruth  H.  Cobe  during  her  life,  but  it  is  a  case  where  the  !f75,(X)0  was  to  be 
laid  out  by  trustees  in  the  purchase  of  an  annuity  for  Ruth  H.  Cobe  during 
her  life.  For  that  reason  it  is  not  a  case  within  the  rule  of  Claflin  v.  Claflin, 
149  Mass.  19  [20  N.  E.  454,  3  L.  R.  A.  370,  14  Am.  St.  Rep.  393].  The  $75,000 
was  to  be  laid  out  in  the  purchase  of  an  annuity  in  the  case  at  bar  by  trus- 
tees and  not  by  executors.  In  our  opinion  that  makes  no  difference.  Where 
the  only  duty  to  be  performed  by  a  trustee  is  to  buy  a  particular  piece  of 
property  for  the  cestui  qne  trust  which  piece  of  property  the  cestui  que 
trust  can  sell  as  soon  as  it  is  bought,  the  rule  of  a  bequest  for  a  particular 
object  applies  and  the  cestui  que  trust  is  entitled  to  the  money.  The  pur- 
chase is  as  much  a  nugatory  act  in  case  of  a  trust  as  it  is  in  case  of  a  be- 
quest, and  the  same  rule  governs  both  cases." 

Suppose  that  the  cestui  que  trust  and  the  trustee  agree  that  the  trust 
shall  be  terminated  before  the  time  prescribed,  can  the  trustee  distribute 
without  being  guUty  of  a  breach  of  trust?  See  Welch  v.  Episcopal  Theo- 
logical School,  189  Mass.  108,  75  N.  E.  139. 


Ch.  6)  ILLEGAL  AND  IMPOSSIBLE   CONDITIONS  703 

CHAPTER  VI 
ILLEGAL  AND  IMPOSSIBLE  CONDITIONS 


CO.  LIT.  206a :  If  a  condition  annexed  to'  lands  be  possible  at 
the  making  of  the  condition,  and  become  impossible  by  the  act  of  God, 
yet  the  state  of  the  feoffee,  &c.  shall  not  be  avoided.  As  if  a  man 
maketh  a  feoffment  in  fee  upon  condition,  that  the  feoffor  shall  within 
one  year  go  to  the  city  of  Paris  aboiit  the  affairs  of  the  feoffee,  and 
presently  after  the  feoffer  dieth,  so  as  it  is  impossible  by  the  act  of 
God  that  the  condition  should  be  performed,  yet  the  estate  of  the 
feoffee  is  become  absolute;  for  though  the  condition  be  subsequent  to 
the  state,  yet  there  is  a  precedency  before  the  re-entry,  viz.  the  per- 
formance of  the  condition.  And  if  the  land  should  by  construction  of 
law  be  taken  from  the  feoffee,  this  should  work  a  damage  to  the  feoffee, 
for  that  the  condition  is  not  performed  which  was  made  for  his  benefit. 
And  it  appeareth  by  Littleton,  that  it  must  not  be  to  the  damage  of  the 
feoffee ;  and  so  it  is  if  the  feoffor  shall  appear  in  such  a  court  the  next 
term,  and  before  the  day  the  feoffor  dieth,  the  estate  of  the  feoffee  is 
absolute.  But  if  a  man  be  bound  by  recognizance  or  bond  with  condi- 
tion that  he  shall  appear  the  next  term  in  such  a  court,  and  before  the 
day  the  conusee  or  obligor  dieth,  the  recognizance  or  obligation  is 
saved ;  and  the  reason  of  the  diversity  is,  because  the  state  of  the  land 
is  executed  and  settled  in  the  feoffee,  and  cannot  be  redeemed  back 
again  but  by  matter  subsequent,  viz.  the  performance  of  the  condition. 
But  the  bond  or  recognizance  is  a  thing  in  action,  and  executory, 
whereof  no  advantage  can  be  taken  until  there  be  a  default  in  the 
obligor ;  and  therefore  in  all  cases  where  a  condition  of  a  bond,  re- 
cognizance, &c.  is  possible  at  the  time  of  the  making  of  the  condition, 
and  before  the  same  can  be  performed,  the  condition  becomes  impossible 
by  the  act  of  God,  or  of  the  law,  or  of  the  obligee,  &c.  there  the  obli- 
gation, &c.  is  saved.  But  if  the  condition  of  a  bond,  &c.  be  impossible 
at  the  time  of  the  making  of  the  condition,  the  obligation,  &c.  is  single. 
And  so  it  is  in  case  of  a  feoffment  in  fee  with  a  condition  subsequent 
that  is  impossible,  the  state  of  the  feoffee  is  absolute ;  but  if  the  con- 
dition precedent  be  impossible,  no  state  or  interest  shall  grow  there- 
upon. And  to  illustrate  these  by  examples  you  shall  understand.  If  a 
man  be  bound  in  an  obligation,  &c.  with  condition  that  if  the  obligor 
do  go  from  the  church  of  St.  Peter  in  Westminster  to  the  church  of  St. 
Peter  in  Rome  within  three  hours,  that  then  the  obligation  shall  be 
void.  The  condition  is  void  and  impossible,  and  the  obligation  standeth 
good. 


704  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  5 

And  so  it  is  if  a  feoffment  be  made  npon  condition  that  the  feoffee 
shall  go  as  is  aforesaid,  the  state  of  the  feoffee  is  absolute,  and  the 
condition  impossible  and  void. 

If  a  man  make  a  lease  for  life  upon  condition  that  if  the  lessee  go  to 
Rome,  as  is  aforesaid,  that  then  he  shall  have  a  fee,  the  condition  pre- 
cedent is  impossible  and  void,  and  therefore  no  fee  simple  can  grow  to 
the  lessee. 

If  a  man  make  a  feoffment  in  fee  upon  condition  that  the  feoffee 
shall  re-enfeoff  him  before  such  a  day,  and  before  the  day  the  feoffor 
disseise  the  f eoft'ee,  and  hold  him  out  by  force  until  tlie  day  be  past,  the 
state  of  the  feoffee  is  absolute,  for  "the  feoffor  is  the  cause  wherefore 
the  condition  cannot  be  performed,  and  therefore  shall  never  take  ad- 
vantage for  non-performance  thereof."  And  so  it  is  if  A.  be  bound 
to  B.  that  I.  S.  shall  marry  Jane  G.  before  such  a  day,  and  before  the 
day  B.  marry  with  Jane,  he  shall  never  take  advantage  of  the  bond, 
for  that  he  himself  is  the  mean  that  the  condition  could  not  be  per- 
formed.   ^And  this  is  regularly  true  in  all  cases. ^ 

But  it  is  commonly  holden  that  if  the  condition  of  a  bond,  &c.  be 
against  law,  that  the  bond  itself  is  void. 

But  herein  the  law  distinguisheth  between  a  condition  against  law  for 
the  doing  of  any  act  that  is  malum  in  se,  and  a  condition  against  law 
(that  concerneth  not  anything  that  is  malum  in  se)  but  therefore  is 
against  law,  because  it  is  either  repugnant  to  the  state,  or  against  some 
maxim  or  rule  in  law.  And  therefore  the  common  opinion  is  to  be  un- 
derstood of  conditions  against  law  for  the  doing  of  some  act  that  is 
malum  in  se,  and  yet  therein  also  the  law^  distinguisheth.  As  if  a  man 
be  bound  upon  condition  that  he  shall  kill  I.  S.  the  bond  is  void. 

But  if  a  man  make  a  feoffment  upon  condition  that  the  feoffee  shall 
kill  I.  S.  the  estate  is  absolute,  and  the  condition  void.^ 


THOMAS  V.  HOWELIv. 

(Court  of  King's  Bench,  1693.     1  Salk.  170.) 

One  devised  to  his  eldest  daughter,  upon  condition  she  should  mar- 
ry his  nephew  on  or  before  she  attained  the  age  of  twenty-one.  The 
nephew  died  young,  and  the  daughter  never  refused,  and  indeed  never 
was  required  to  marry  him.     After  the  death  of  the  nephew,  the 

1  Accord:   Harwood  v.  Shoe,  141  N.  C.  161,  53  S.  E.  616. 

2  Accord:  Conrad  v.  Long,  .33  Mich.  78  (condition  subsequent  by  way  of 
forfeiture  if  the  devisee  should  live  with  her  husband) ;  O'Brien  v.  Barkley, 
78  Hun,  001),  28  N.  Y.  Supp.  1049  (condition  subsetiuent  of  forfeiture  if  the 
first  taker  live  with  her  husband) ;  Cniger  v.  Phelps,  21  Misc.  Rep.  252,  47 
N.  Y.  Supp.  61  (condition  of  forfeiture  if  the  legatee  traveled  or  resided 
outside  the  continent  of  Europe  during  her  husband's  life  and  untU  she  shall 
be  divorced  from  him). 


Ch.  6)  ILLEGAL  AND  IMPOSSIBLE   CONDITIONS  705 

daughter,  being  about  seventeen,  married  J.  S.  And  it  was  adjudged 
in  C.  B.  that  the  condition  was  not  broken,  being  become  impossible 
by  the  act  of  God;  and  the  judgment  was  afterwards  affirmed  in  error 
in  B.  R.3 


PRIESTLEY  V.  HOLGATE. 
(Court  of  Chancery,  1857.    3  Kay  &  J.  286.) 

Joseph  Priestley,  by  his  will,  dated  in  1850,  gave  and  bequeathed  to 
James  Priestley  the  sum  of  £19  19s. ;  and  also  a  further  legacy  of 
£2000. 

The  testator  made  a  codicil,  dated  in  1852,  as  follows :  "Whereas, 
since  the  making  of  my  will,  James  Priestley,  to  whom  I  had  bequeath- 
ed £2000,  has  emigrated  to  Australia,  I  therefore  hereby  revoke  that 
legacy,  and  in  lieu  thereof  I  give  and  bequeath  to  him  the  said  James 
Priestley,  in  case  he  remains  in  Australia  or  out  of  this  kingdom,  £600, 
to  be  paid  to  him  twelve  months  after  the  decease  of  my  wife ;  but  if 
he  return  to  England  before  her  decease,  I  give  and  bequeath  to  him 
the  further  sum  of  i400  (making  £1000).  This  last  £400  not  to  be  paid 
till  twelve  months  after  the  decease  of  my  wife." 

In  November,  1852,  the  testator  died.  Sarah  Priestley,  his  widow, 
died  in  January,  1856. 

At  the  time  of  the  decease  of  the  testator,  James  Priestley  was  at 
Melbourne,  in  Australia,  whither  he  had  gone  in  the  year  1852. 

On  the  9th  day  of  August,  1853,  he  sailed  in  a  British  ship  named 
the  Madagascar  from  Melbourne  on  the  homeward  voyage  to  England, 
and  upon  the  voyage  the  Madagascar  was  totally  lost,  and  all  her  crew 
and  passengers  perished  at  sea. 

The  plaintiff  was  his  administratrix,  and  filed  the  bill  in  this  suit  to 
recover  the  said  legacies  of  il9  19s.  and  £600  and  £400. 

Judgment  reserved. 

VicE-Chancellor  Sir  W.  Page  Wood.  I  delayed  giving  my  judg- 
ment in  this  case,  in  the  hope  of  finding  something  to  enable  me  to 
decide  in  favor  of  the  plaintiff's  claim  to  the  additional  legacy  of  £400. 
[His  Honor  stated  the  effect  of  the  will  and  codicil  and  continued:] 
At  the  time  of  making  this  codicil,  James  Priestley  was  in  Australia. 
It  is  proved  that  he  embarked  to  return  to  England,  but  the  ship  in 
which  he  sailed  foundered  at  sea,  and  all  on  board  perished.  The  con- 
dition on  which  the  legacy  was  given  is  personal  to  the  legatee,  and 
the  legacy  cannot  take  effect  unless  that  inchoate  return  fulfils  the 
terms  of  the  condition.     I  was  desirous  to  adopt  that  construction,  if 

3  Accord:  Union  Pac.  Ry.  Co.  v.  Cook.  98  Fed.  281,  39  C.  C.  A.  86  (where 
the  grantee  could  no  longer  perform  the  condition  because  the  land  was 
washed  away) ;  Cincinnati  v.  Babb,  4  Ohio  S.  &  C.  P.  Dec.  464  (where  the 
grantee  could  no  longer  use  the  premises  for  a  church  because  it  was  taken 
by  condemnation). 

4  Kales  Prop. — 45 


706  ILLEGAL  CONDITIONS  AND  RESTRAINTS  (Part  5 

possible ;  but  I  do  not  think  that  the  words  of  the  condition,  which 
are  very  precise,  "if  he  return  to  England  before  her  decease,"  can 
be  satisfied  by  his  embarking  on  a  voyage  to  this  country,  in  which  he 
perished  at  sea. 

If  the  codicil  had  contained  a  recital,  that,  owing  to  the  testator's 
displeasure  with  James  Priestley  on  account  of  his  departure  to  Aus- 
tralia, he  attached  this  condition  to  the  legacy  as  a  penalty,  possibly 
the  inchoate  return  might  have  satisfied  the  condition;  but  it  may  be, 
that  the  reason  for  the  condition  was,  that  the  testator  thought,  that, 
while  away  from  England,  James  Priestley  did  not  require  so  large  a 
provision  as  he  would  if  residing  in  this  country.  I  must,  therefore, 
decide  against  the  plaintiff's  claim  as  to  the  i400.* 


In  re  MOORE. 
(Chancery  Division  and  Court  of  Appeal,  1SS7,  1888.    39  Ch.  Div.  116.) 

John  Moore,  who  died  on  the  17th  of  April,  1885,  by  his  will  dated 
the  2d  of  April,  1885,  after  appointing  one  Trafford  his  trustee,  and 
appointing  a  guardian  of  his  infant  son,  John  William  Moore,  pro- 
ceeded as  follows :  "I  give  and  bequeath  to  my  trustee  all  property  of 
which  I  am  possessed  or  entitled  to,  or  over  which  I  have  any  dis- 
posing power,  upon  trust  (after  payment  thereout  of  my  debts,  funeral 
and  testamentary  expenses)  to  pay  to  my  sister  Mary  Maconochie 
during  such  time  as  she  may  live  apart  from  her  husband,  before  my 
son  attains  the  age  of  twenty-one  years,  the  sum  of  £2  10s.  per  week 
for  her  maintenance  whilst  so  living  apart  from  her  husband :  and 
upon  trust  as  to  one  moiety  of  my  said  trust  estate  to  pay  the  same 
to  my  said  son  on  his  attaining  the  age  of  twenty-one  years;  and  as 
to  the  other  moiety  thereof  upon  trust  to  pay  the  same  to  my  said  son 
on  his  attaining  the  age  of  twenty-five  years,"  with  a  gift  over  on  the 
death  of  his  said  son  under  the  age  of  twenty-five  years. 

Mary  Maconochie  and  her  husband  were  married  in  1866,  and  they 
had  never  lived  apart  until  the  latter  part  of  1886,  more  than  a  year 
after  the  death  of  the  testator,  when  they  ceased  to  live  together.  The 
testator  was  well  aware,  at  the  date  of  his  will,  that  they  were  living 
together,  but  he  had  quarrelled  with  the  husband  and  had  not  been  for 
several  years  on  speaking  terms  with  him. 

4  Accord:  Stockton  v.  Weber,  98  Cal.  4.33.  33  Pac.  332  (where  the  condi- 
tion precedent  required  the  securing  of  legislation) ;  Brennau  v.  Brennan, 
185  ]\r:iss.  560,  71  N.  E.  80,  102  Am.  St.  Kep.  363  (where  the  condition  pre- 
cedent was  that  the  devisee  support  the  testator  during  her  life,  but  the 
devisee  had  no  knowledge  of  the  condition) ;  Boyce  v.  Boyce  (1S49)  Ki  Sim. 
476  (wliere  trustees  were  directed  to  convey  such  one  of  the  testator's  houses 
to  M.  as  she  should  designate,  and  all  the  other  of  them  to  C,  and  where 
M.  died  in  the  lifetime  of  the  testator,  and  so  made  no  selection).  See  1 
Koper  on  Legacies  (4th  Ed.)  754-757. 


Ch.  6)  ILLEGAL  AND  IMPOSSIBLE   CONDITIONS  707 

The  testator's  son  survived  him  and  was  still  an  infant. 

This  was  an  originating  summons  taken  out  by  the  trustee  of  the 
will  against  Mrs.  Maconochie  for  the  decision  of  the  question  whether 
she  was  entitled  to  payment  of  the  legacy  of  12  10s.  per  week,  dis- 
charged from  the  restriction  imposed  by  the  testator. 

Upon  the  summons  coming  on  in  chambers,  his  Lordship  directed  it 
to  be  adjourned  into  court  for  argument;  that  a  guardian  ad  litem 
should  be  appointed  to  the  testator's  infant  son,  and  that  the  infant 
should  be  separately  represented. 

The  summons  was  heard  before  Mr.  Justice  Kay  on  the  7th  of  De- 
cember, 1887. 

1887,  Dec.  14.  Kay,  J.  (after  reading  the  bequest  and  stating  the 
facts,  continued) : 

Before  applying  rules  of  law  to  a  provision  of  this  kind  it  is  prop- 
er to  determine,  independently  of  any  such  rule,  what  is  the  construc- 
tion of  this  bequest. 

Independently  of  any  rule  of  law  or  decided  case,  the  construction 
of  the  words  which  I  have  read  is  indisputable.  It  is  a  gift  of  a  fixed 
sum  every  week  during  a  certain  period.  To  that  period  there  are 
two  limits:  it  is  not  to  extend  in  any  case  beyond  the  joint  lives  of 
the  husband  and  wife  and  the  time  when  the  testator's  son  attains 
twenty-one ;  but  the  payments  are  only  to  be  made  during  such  part 
of  that  period  as  Mary  Maconochie  may  be  living  apart  from  her  hus- 
band, and  for  her  maintenance  while  so  living  apart.  As  matter  of 
construction  it  is  impossible  to  hold  that  any  of  these  payments  are 
given  to  her  while  living  with  her  husband.  The  living  apart  from  her 
husband  is  of  the  essence  of  the  gift  in  this  sense — that  it  is  the  meas- 
ure of  the  duration  of  these  payments. 

It  has  been  argued  that  it  must  be  treated  as  a  legacy  given  upon 
a  condition  precedent,  which,  being  against  the  policy  of  the  law,  must 
be  rejected,  leaving  the  legacy  free  from  condition.  If  it  be  treated 
as  a  gift  of  an  indefinite  number  of  weekly  payments  of  £2  10s.,  there 
being  a  condition  attached  to  each  that  in  the  week  for  which  it  is 
payable  the  legatee  should  be  living  apart  from  her  husband,  if  the 
condition  be  rejected,  it  must  fail  because  the  number  of  payments  is 
undefined. 

In  other  words,  if  it  be  a  gift  of  so  many  sums  of  £2  10s.  as  there 
should  be  weeks  in  which  the  legatee  was  living  apart  from  her  hus- 
band, then,  if  you  strike  out  the  words  "living  apart,  &c.,"  there  are  no 
means  of  computing  how  many  such  payments  should  be  made. 

The  duration  of  these  payments  is  a  limitation,  not  a  condition ;  and 
to  give  them  any  longer  or  other  duration  than  that  prescribed  by  the 
will  cannot  be  done  by  treating  them  like  a  legacy  of  a  sum  of  money 
given  subject  to  a  condition  which  may  be  discharged.  To  treat  this 
gift  in  that  manner  would  be  making  an  entirely  new  and  essentially 
different  bequest. 


708  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  5 

It  may  be  said,  "You  do,  in  effect,  make  a  different  bequest  when 
you  reject  a  precedent  condition  and  establish  the  legacy  discharged 
from  it."  That  is  so.  It  is  doing  great  violence  to  the  will.  In  cases 
of  real  estate  the  common  law  of  England  will  not  permit  such  a 
construction:  and  this  rule,  adopted  from  the  civil  law,  ought  not  to 
be  extended.  By  rejecting  a  precedent  condition  upon  which  a  simple 
legacy  of  a  sum  of  money  is  bequeathed,  the  amount  of  the  legacy  is 
not  altered.  But  in  this  case  the  argument  requires  that  an  annuity 
given  during  one  period  should  be  altered  into  an  annuity  for  another 
and  wholly  different  period. 

This  is,  for  the  present  purpose,  the  essential  difference  between  a 
condition  and  a  limitation. 

If  the  gift  were  during  the  joint  lives  of  the  husband  and  wife  until 
the  son  attained  twenty-one,  with  a  condition  defeating  it  if  the  hus- 
band and  wife  lived  together,  it  might  be  necessary  to  reject  the  con- 
dition and  maintain  the  gift ;  but  I  think  it  impossible  to  construe  the 
will  in  that  way. 

Suppose  it  were  a  legacy  of  a  sum  computed  by  the  number  of  il- 
legal acts  committed  by  the  legatee,  at  12  10s.  for  each — obviously  such 
a  legacy  must  fail  if  you  reject  the  mode  of  computing  it. 

Then,  suppose  it  to  be  £2  lOs.  for  every  week  in  which  the  legatee 
should  commit  an  illegal  act — if  the  limitation  be  rejected  the  com- 
putation would  be  equally  impossible ;  and  I  am  not  aware  of  any  rule 
of  construction  or  rule  of  law  which  would  justify  the  court  in  treat- 
ing such  a  gift  as  a  life  annuity. 

The  argument  in  its  most  plausible  form  is  that  from  the  nature  of 
the  gift  there  are  two  limits  contemplated,  and  if  you  take  one  away 
the  other  only  is  left,  and  therefore,  in  this  case,  the  gift  should  be 
read  as  though  it  were  of  12  10s.  a  week  during  the  joint  lives  of  the 
husband  and  wife,  until  the  son  attains  twenty-one. 

But  what  authority  is  there  for  thus  removing  an  essential  limit? 
There  is  none,  unless  it  can  come  under  the  law  as  to  conditions,  or, 
what  is  in  some  cases  equivalent,  conditional  limitations  defeating  an 
interest  previously  given.  But  before  this  law  can  be  applied  it  must 
be  determined,  as  matter  of  construction,  whether  the  gift  is  of  that 
nature. 

In  my  opinion,  the  true  construction  of  this  bequest  is  that  it  is  a 
'  limitation  of  weekly  payments  during  a  specified  time,  and  that  it  is 
not  a  legacy  subject  to  a  condition  either  precedent  or  subsequent. 
The  object  of  the  limitation  being  obviously  to  induce  the  person  in 
whose  favor  it  is  made  to  live  apart  from  her  husband,  the  whole  lim- 
itation may  possibly  be  void;  but  if  the  event  has  not  happened,  the 
trust  has  not  arisen  at  all. 

For  this  construction  it  seems  to  me  that  there  is  clear  and  distinct 
authority. 

In  Webb  v.  Grace,  2  Ph.  701,  a  covenant  to  pay  to  a  single  woman 
during  her  life,  subject  to  the  proviso  after  contained,  an  annuity  of 


Ch.  6)  ILLEGAL  AND   IMPOSSIBLE   CONDITIONS  709 

£40,  provided  that  if  she  married,  the  annuity  should  be  reduced  to  £20, 
was  held  to  be  valid  because  it  was  in  effect  an  agreement  to  pay  £40 
a  year  to  her  during  so  much  of  her  life  as  she  should  remain  un- 
married, and  £20  a  year  afterwards,  and  that  this  was  a  limitation, 
not  a  condition. 

In  Heath  v.  Lewis,  3  D.  M.  &  G.  954,  a  gift  by  will  to  a  woman  who 
had  never  been  married,  if  she  should  be  unmarried  at  the  death  of  M., 
of  £2  10s.  a  month  during  her  life  if  she  should  so  long  remain  unmar- 
ried, was  read  "as  a  limitation  as  distinguished  from  a  condition,"  and 
therefore  the  payments  ceased  on  her  marriage.  This  gift  might  have 
been  construed  to  be  a  defeasible  life  annuity  more  easily  than  the  pro- 
vision in  the  will  now  before  me,  and  of  course  the  defeasance  would 
have  been  void. 

In  Evans  v.  Rosser,  2  H.  &  M.  190,  the  testator  gave  real  and  per- 
sonal estate  to  his  son-in-law  during  the  term  of  his  life  or  marriage 
again,  and  after  his  death  or  marriage,  over ;  and  it  was  held  that  this 
was  a  limitation  till  marriage,  and  not  a  gift  of  a  life  estate  defeasible 
on  marriage. 

The  same  construction  was  applied  in  the  well-known  case  of  Roch- 
ford  v.  Hackman,  9  Hare,  475,  where  a  limitation  in  form  determining 
a  life  estate  upon  alienation,  was  held  to  amount  to  a  limitation  until 
alienation  and  then  over — a  construction  which  has  been  followed  in 
a  multitude  of  cases  since  that  decision. 

But  it  is  said  that  the  court  is  bound  by  authority  to  hold  that  the 
legatee  in  this  case  is  entitled  to  £2  10s.  a  week,  whether  she  lives 
apart  from  her  husband  or  not.  The  authorities  cited  demand  a  care- 
ful consideration.  Undoubtedly  our  law,  in  dealing  with  bequests  of 
personal  property,  has  adopted  some  doctrines  of  the  civil  law  which 
seem  to  me  much  less  satisfactory  than  the  rules  of  the  common  law 
which  we  apply  in  the  case  of  devises  of  real  estate.  Swinburne  (On 
Wills,  part  4,  s.  6,  ed.  1611,  p.  138;  ed.  1590,  p.  122)  states  four  sorts 
of  impossible  conditions,  of  which  the  second  are  "those  which  be 
contrary  to  law  or  good  manners,"  instancing  a  gift  of  £100  to  A.  B. 
if  he  murder  such  a  man  or  deflower  such  a  woman.  Then  he  says 
(part  4,  s.  6,  ed.  1611,  p.  140;  ed.  1590,  p.  124)  that  where  a  condi- 
tion is  impossible  "such  condition  hindereth  not  the  *  *  *  lega- 
tary, but  that  he  may  *  *  *  recover  the  legacy,  as  if  such  had  not 
been  at  all  expressed."  And  he  further  says  (part  4,  s.  6,  ed.  1611, 
p.  142;  ed.  1590,  p.  127),  "When  the  condition  is  both  impossible  and 
unhonest  *  *  *  the  disposition  is  thereby  void :  and  that  in  dis- 
favor of  the  testator,  who  added  such  a  condition,  whereas  if  the 
condition  had  been  only  impossible  or  unlawful,  the  disposition  had 
been  good,  and  that  in  favor  of  the  testament." 

Jarman  on  Wills  ('4th  ed.  vol.  ii,  p.  12)  states  the  law,  adopted  from 
the  civil  law,  to  be  that  where  a  condition  precedent  is  originally  im- 
possible or  is  made  so  by  the  act  or  default  of  the  testator,  or  is  il- 
legal as  involving  malum  prohibitum,  the  bequest  is  absolute,  just  as 


710  ILLEGAL   CONDITIONS   AND   RESTRAINTS  (Part  5 

if  the  condition  had  been  subsequent:  but  that,  where  it  is  illegal  as 
involving  malum  in  se,  the  civil  agrees  with  the  common  law  in  hold- 
ing both  gift  and  condition  void. 

This  law  is  recognized  in  Williams  on  Executors  (6th  ed.,  p.  1174; 
8th  ed.,  pp.  1269,  1270). 

In  Tothill's  Reports  (ed.  1671,  p.  141 ;  ed.  1820,  p.  78)  is  the  follow- 
ing short  note  of  a  case — Tennant  v.  Braie  (Nov.  8,  6  Jac.) :  "A  devise 
made  to  the  daughter  to  pay  her  a  sum  of  money  if  she  will  be  di- 
vorced from  her  husband,  the  gift  made  good,  though  the  condition 
void." 

The  doctrine  that  conditions  precedent  as  well  as  conditions  subse- 
quent which  are  against  the  policy  of  the  law  are  treated  as  void  in 
cases  of  legacies  of  personal  estate,  and  that  the  legacy  "stands  pure 
and  simple,"  is  distinctly  recognized  by  Lord  Hardwicke  in  Reynish  v. 
Martin,  3  Atk.  330,  332;  and  the  rules  borrowed  from  the  civil  law 
were  held  by  the  late  Master  of  the  Rolls  to  apply  to  a  mixed  fund  of 
the  proceeds  of  real  and  personal  estate:  Bellairs  v.  Bellairs,  Law 
Rep.  18  Eq.  510. 

I  assume,  therefore,  that  if  this  is  to  be  treated  as  a  legacy  given 
upon  a  precedent  condition  or  defeasible  by  a  subsequent  condition 
which  is  bad  as  involving' that  which  is  malum  prohibitum,  the  legacy 
must  take  effect,  discharged  of  the  condition. 

In  Brown  v.  Peck,  1  Eden,  140,  the  testator,  noticing  in  his  will  that 
his  niece  Rebecca  had  married  without  the  consent  of  her  mother, 
directed  that  if  she  lived  with  her  husband  his  executor  should  pay 
her  £2  a  month  and  no  more ;  but  if  she  lived  from  him  and  with  her 
mother,  then  they  should  allow  her  £S  a  month.  Lord  Keeper  Henley 
held  that  she  was  entitled  to  the  monthly  payment  of  £S,  "and  that  the 
condition  annexed  being  both  impossible  at  the  time  of  imposing  it, 
and  contra  bonos  mores,  the  legacy  was  simple  and  pure."  I  have 
referred  to  the  registrar's  book,  and  it  seems  clear  that  the  condition 
was  only  impossible  in  the  sense  that  everything  which  is  prohibited  by 
law  is  so  in  the  contemplation  of  law.  The  husband,  wife  and  mother 
seem  to  have  been  all  three  living.  It  is  evident  that  the  will  was  read 
as  a  gift  of  £5  a  month  to  Rebecca  for  life  upon  condition  that  she  did 
not  live  with  her  husband,  or  £5  a  month  for  life  cut  down  to  £2  if 
she  should  live  with  him.  Such  a  condition  was  against  the  policy  of 
the  law,  and  was  therefore  treated  as  a  nullity.  It  appears  from  the 
Registrar's  Book  that  the  point  was  not  argued,  the  other  parties  de- 
siring that  the  legatee  should  have  the  £S  a  month. 

In  Wren  v.  Bradley,  2  De  G.  &  Sm.  49,  one  bequest  was  to  pay  to 
the  testator's  daughter,  in  case  she  should  be  living  apart  from  her 
husband  A.,  and  should  continue  so  to  do  during  the  lifetime  of  the 
testator's  wife,  an  annuity  of  £30;  but,  if  she  should  cohabit  with  him, 
it  should  cease  during  such  cohabitation.  The  husband  and  wife  were 
living  apart  at  the  date  of  the  will,  but  were  living  together  at  the 
death  of  the  testator,  and  the  Vice-Chancellor,  evidently  with  consider- 


Ch.  G)  ILLEGAL  AND  IMPOSSIBLE   CONDITIONS  711 

able  hesitation,  held  that  she  was  entitled  to  the  gift  discharged  from 
the  condition.  He  came  to  the  same  conclusion  with  respect  to  a  direc- 
tion to  pay  the  interest  of  one-third  of  the  residue  to  his  said  daugh- 
ter "during  such  time  as  she  shall  continue  to  live  apart  from  her  said 
husband,"  but  if  she  cohabited  with  him  the  income  was  to  be  paid  to 
other  persons,  and  after  her  death  the  capital  was  given  over.  This 
latter  gift  is  in  the  form  of  a  limitation  rather  than  a  condition. 

I  must  follow  these  decisions  in  any  case  governed  by  them :  but  the 
construction  of  one  set  of  words  is  not  binding  when  you  are  con- 
struing a  different  provision.  Because  the  court  in  those  cases  held  the 
words  were  conditional  it  does  not  follow  that  other  words  are  to  be  so 
construed.  The  decisions  are  only  binding  when  the  bequest  is  as- 
certained to  be  conditional  by  independent  construction.  They  do  not 
lay  down  any  rule  what  bequests  are  to  be  so  considered ;  no  canon  of 
construction  is  established  by  either  of  the  cases  for  this  purpose. 

I  confess  that  I  find  it  difficult  to  understand  these  two  decisions. 
As  to  Brown  v.  Peck,  1  Eden,  140,  the  legatee  must  have  been  entitled 
to  the  gift  of  f2  a  month.  That  was  not  affected  by  any  illegality.  If 
the  reason  given  in  the  short  report  be  good,  she  was  entitled  to  the 
£5  a  month  as  well  as  the  £2.  The  only  mode  of  arriving  at  the  de- 
cision was  by  treating  it  as  an  annuity  of  £5  a  month  during  the  joint 
lives  of  the  husband  and  wife,  cut  down  to  £2  a  month  if  they  lived  to- 
gether. I  should  have  had  great  difficulty  in  so  construing  it.  But 
such  a  bequest  is  altogether  different  from  a  gift  of  a  weekly  payment 
during  a  period  only  defined  by  the  legatee  living  apart  from  her 
husband.  In  that  respect  the  wording  of  the  bequest  in  this  case  dif- 
fers materially  from  that  in  Brown  v.  Peck. 

Here  the  payments  are  to  be  made  "during  such  time  as  she  may 
live  apart  from  her  husband,"  and  there  is  no  alternative  life  annuity 
or  gift  for  any  longer  period.  In  Brown  v.  Peck  it  was,  if  she  lived 
with  her  husband  £2  a  month,  but  if  she  lived  from  him  £5  a  month, 
one  or  other  of  those  payments  being  intended  to  last  during  the  joint 
lives. 

In  Wren  v.  Bradley,  2  De  G.  &  Sm.  49,  however,  the  gifts  more 
nearly  resembled  the  bequest  in  the  present  case,  especially  the  gift 
of  interest  of  one-third  of  the  residue,  which  was  to  be  paid  "during 
such  time  as  she  should  continue  to  live  apart."  The  gift  of  residue 
was  obviously  construed  as  a  life-estate,  with  a  conditional  limitation 
divesting  it,  which  could  be  rejected.  With  all  respect,  I  think  this 
construction  doubtful.  But,  again,  the  words  differ  from  those  in  the 
present  case.  It  was  more  possible  to  construe  the  gift  as  a  defeasible 
life  interest  than  it  would  be  to  put  that  construction  upon  the  words  I 
have  to  consider. 

In  one  sense  the  rule  rejecting  certain  conditions,  which  is  borrowed 
from  the  civil  law,  is  a  rule  of  construction.  That  is,  when  you  find 
a  legacy  jcoupled  with  an  invalid  condition,  the  will  is  to  be  construed 
as  if  the  condition  was  not  there.     But,  obviously,  it  must  first  be  de- 


712  ILLEGAL   CONDITIONS   AND   RESTRAINTS  (Part  5 

termined  whether  there  is  a  conditional  legacy;  and  the  construction 
for  the  purpose  is  independent  of  and  must  precede  the  application  of 
the    rule. 

I  hold  that  the  legatee  in  this  case  is  not  entitled  to  any  payment  of 
£2  10s.,  because  these  payments  are  not  legacies  given  upon  a  condi- 
tion, but  are  to  be  made  only  within  certain  limits  which  the  court  has 
no  power  to  alter. 

Mrs.  ]Maconochie  appealed  and  the  appeal  was  argued  on  the  7th 
and  8th  of  June,  1888. 

June  9th.  Cotton,  L.  J.  The  question  we  have  to  decide  is  whether 
the  trustee  of  the  will  of  Air.  John  Moore  ought  to  pay  the  sum  of  i2 
10s.  per  week  to  Mrs.  Maconochie,  a  sister  of  the  testator.  The  tes- 
tator by  his  will  gave  all  his  property  to  a  trustee  "upon  trust  (after 
payment  thereout  of  my  debts,  funeral  and  testamentary  expenses)  to 
pay  to  my  sister  Mary  Maconochie  during  such  time  as  she  may  live 
apart  from  her  husband  before  my  son  attains  the  age  of  twenty-one 
years  the  sum  of  12  10s.  per  week  for  her  maintenance  while  so  liv- 
ing apart  from  her  husband."  When  the  will  was  made,  Mrs.  Macono- 
chie was  living  wath  her  husband,  and  continued  to  do  so  until  after  the 
testator's  death.  The  testator  did  not  like  the  husband,  and  his  ap- 
parent object  was  to  induce  the  wife  to  live  separate  from  him.  If  so, 
the  gift  was  for  a  purpose  which  is  contrary  to  the  law  of  England, 
for  that  law  does  not  allow  provisions  made  in  contemplation  of  a 
future  separation  between  husband  and  wife.  The  appellant  contends 
that  the  gift  is  to  operate  as  a  direction  that  £2  10s.  per  week  shall 
be  paid  to  her  from  the  death  of  the  testator,  though  she  is  living  with 
her  husband,  thus  entirely  altering  the  amount  of  the  gift  made  to  her 
by  the  testator.  She  contends  that  the  gift  is  a  gift  of  personalty  sub- 
ject to  an  illegal  condition  precedent,  and  that  according  to  the  doc- 
trine of  the  civil  law,  which  has  been  adopted  by  our  law  as  to  per- 
sonal legacies,  the  illegal  condition  may  be  rejected,  leaving  the  gift 
absolute.  The  rule  is  thus  stated  by  Mr.  Jarman  (On  Wills,  4th  ed. 
vol.  ii.  p.  12) :  "But  with  respect  to  legacies  out  of  personal  estate, 
the  civil  law,  which  in  this  respect  has  been  adopted  by  courts  of 
equity,  differs  in  some  respects  from  the  common  law  in  its  treatment 
of  conditions  precedent;  the  rule  of  the  civil  law  being  that  where 
a  condition  precedent  is  originally  impossible,  or  is  made  so  by  the 
act  or  default  of  the  testator,  or  is  illegal  as  involving  malum  pro- 
hibitum, the  bequest  is  absolute,  just  as  if  the  condition  had  been  sub- 
sequent. But  where  the  performance  of  the  condition  is  the  sole  mo- 
tive of  the  bequest,  or  its  impossibility  was  unknown  to  the  testator, 
or  the  condition  which  was  possible  in  its  creation  has  since  become 
impossible  by  the  act  of  God,  or  where  it  is  illegal  as  involving  malum 
in  se,  in  these  cases  the  civil  agrees  with  the  common  law  in  holding 
both  gift  and  condition  void." 

According  to  English  law  if  a  condition  subsequent  which  is  to  de- 
feat an  estate,  is  against  the  policy  of  the  law,  the  gift  is  absolute, 


Ch.  6)  ILLEGAL  AND   IMPOSSIBLE   CONDITIONS  713 

but  if  the  illegal  condition  is  precedent  there  is  no  gift.  In  the  civil 
law  a  distinction  is  taken  between  what  is  malum  in  se  and  what  is 
only  malum  prohibitum,  but  in  the  view  I  take  of  this  case  we  need 
not  consider  within  which  of  these  two  classes  the  restriction  in  the 
present  case  falls.  Are  the  words  relating  to  living  separate  a  con- 
dition ?  In  my  opinion  they  are  not  a  condition,  but  a  part  of  the  lim- 
itation, and  although  in  some  respects  a  condition  and  a  limitation  may 
have  the  same  effect,  yet  in  English  law  there  is  a  great  distinction  be- 
tween them.  Here  if  you  give  effect  to  the  appellant's  contention,  you 
give  her  what  the  testator  never  intended  to  give  her,  an  annuity  dur- 
ing the  whole  of  her  life  if  the  son  is  so  long  under  age.  It  is  wrong 
to  give  to  an  expression  a  forced  construction  in  order  to  prevent  a 
particular  result  that  follows  from  the  natural  construction.  The  con- 
struction does  not  depend  on  the  civil  law,  and  the  civil  law  is  bind- 
ing only  so  far  as  it  has  been  adopted  by  our  courts.  I  therefore  do 
not  enter  into  the  question  whether  the  civil  law  regards  this  as  a 
condition  or  a  limitation,  for,  if  it  regards  it  as  a  limitation  and  yet 
applies  the  same  rules  to  it  as  to  a  condition,  no  authority  has  been 
cited  to  show  that  the  civil  law  has  to  that  extent  been  followed  in 
England.  Many  authorities  have  been  cited,  but  it  has  not  been  laid 
down  in  any  of  them  that  a  gift  in  this  form  is  to  be  treated  as  a  gift 
upon  condition.  In  Tennant  v.  Braie  (Toth.,  ed.  1671,  p.  141 ;  ed. 
1820,  p.  78),  upon  the  fair  construction  of  the  words,  the  gift  was  a 
gift  upon  condition,  not  a  limited  gift.  A  sum  was  to  be  paid  once  for 
all  if  a  w'oman  w^as  divorced.  There  was  nothing  imposing  a  limit  on 
the  duration  of  the  gift.  In  Brown  v.  Peck,  1  Eden,  140,  the  report 
is  not  clear  either  as  regards  the  facts  or  the  principle  laid  down.  The 
testator,  after  noticing  that  his  niece  had  married  without  the  consent 
of  her  mother,  directed  that  if  she  lived  with  her  husband  his  execu- 
tors should  pay  her  i2  per  month  and  no  more,  but  if  she  lived  from 
him  and  with  her  mother,  then  they  should  allow  her  £5  per  month. 
Lord  Henley  treated  this  as  a  condition,  for  he  says  "the  condition 
annexed  being  both  impossible  at  the  time  of  imposing  it,  and  contra 
bonos  mores,  the  legacy  was  simple  and  pure."  What  was  meant  by 
"impossible"  it  is  hard  to  say,  but  that  is  not  material.  All  that  is  of 
importance  is  that  it  was  treated  as  a  condition,  and  the  words  could 
reasonably  be  so  construed.  Wren  v.  Bradley,  2  De  G.  &  Sm.  49,  oc- 
casions more  difficulty.  There  was  first  a  gift  of  an  annuity  to  the  tes- 
tator's daughter  suljject  to  conditions  which  were  contra  bonos  mores. 
Then  there  was  a  gift  of  the  income  of  one-third  of  an  accumulated 
fund  to  the  same  daughter,  "during  such  time  as  she  shall  continue 
to  live  apart  from  her  said  husband  Abraham  Wren,"  and  then  came 
a  condition  in  the  form  of  a  subsequent  condition,  that  if  she  should 
at  any  time  cohabit  w^ith  her  husband,  then  during  such  time  as  she 
should  cohabit  with  him  the  income  should  be  paid  to  other  persons. 
It  was  proved  that  at  the  date  of  the  will  she  was  living  apart  from 
her  husband.     The  Vice-Chancellor  appears  to  have  been  impressed 


714  ILLEGAL  CONDITIONS  AND   RESTRAINTS,  (Part  5 

by  that,  and  to  have  looked  at  the  gift  of  the  income  as  an  immediate 
gift  of  it  to  the  wife,  subject  to  a  proviso  that  if  she  returned  to  co- 
habitation the  trust  for  payment  to  her  should  cease.  I  think  this  was 
the  real  ground  of  his  decision,  though  he  does  not  clearly  state  his 
reasons.  I  think  his  view  must  have  been  that,  she  being  at  the  time 
separated  from  her  husband,  the  gift  was  a  simple  gift  to  her  with  a 
subsequent  condition  defeating  it  if  she  returned  to  cohabitation.  If 
that  construction  of  the  will  be  adopted  as  correct  there  is  no  difficulty 
about  the  decision,  for  as  to  the  annuity  the  rule  of  the  civil  law  clear- 
ly applied.  None  of  the  cases  in  my  judgment  warrant  our  applying 
it  here,  and  in  my  opinion  Mr.  Justice  Kay  came  to  a  correct  conclu- 
sion. The  gift  here  is  not  a  gift  of  an  annuity  subject  to  a  condition, 
but  a  limited  gift,  the  commencement  and  duration  of  which  are  fixed 
in  a  way  which  the  law  does  not  allow. 

BowEN,  ly.  J.  I  am  of  the  same  opinion.  At  the  date  of  the  will 
the  testator's  sister  was  living  with  her  husband.  The  testator  directs 
his  trustees  to  pay  to  her  during  such  time  as  she  may  live  apart  from 
her  husband,  before  the  testator's  son  attains  twenty-one,  12  10s.  per 
week  for  her  maintenance  whilst  so  living  apart  from  her  husband. 
There  can  be  no  question  that  the  object  of  this  gift  was  to  promote 
separation,  an  object  which  is  against  the  policy  of  the  law,  and  Mr. 
Justice  Kay  has  decided  that  the  gift  is  bad. 

The  argument  for  the  appellant  was  twofold.  First,  she  contended 
that  the  condition  was  subsequent  and  might  be  rejected,  leaving  the 
gift  absolute ;  secondly,  that  if  it  was  a  condition  precedent,  this  being 
a  gift  out  of  pure  personalty,  the  doctrine  of  the  civil  law  applied  and 
the  gift  was  absolute,  for  which  Harvey  v.  Aston,  1  Atk.  361,  and 
Reynish  v.  Martin,  3  Atk.  330,  were  referred  to,  where  Lord  Hard- 
wicke  states  the  fule  of  the  civil  law  and  the  extent  to  which  our  courts 
have  adopted  it.  There  is  a  great  distinction  in  our  law  between  condi- 
tions precedent  and  subsequent.  Lord  Hardwicke,  in  Reynish  v.  Mar- 
tin, says  (3  Atk.  332) :  "The  civil  law  considering  the  condition,  wheth- 
er precedent  or  subsequent,  as  unlawful,  and  absolutely  void,  the  leg- 
acy stands  pure  and  simple.  But  in  our  law,  where  the  condition  is 
precedent,  the  legatary  takes  nothing  till  the  condition  is  performed, 
and  consequently  has  no  right  to  come  and  demand  the  legacy;  but 
it  is  otherwise  where  the  condition  is  subsequent,  for  in  that  case  the 
legatary  has  a  right,  and  the  court  will  decree  him  the  legacy ;  but 
this  difference  only  holds  where  the  legacy  is  a  charge  on  the  real 
assets,  and  therefore,  if  this  had  been  merely  a  personal  legacy,  should 
have  been  of  opinion  that  as  the  marriage  without  consent  would  not 
have  precluded  Mary  of  her  right  to  this  legacy  in  the  ecclesiastical 
court,  no  more  would  it  have  done  so  here:  and  to  this  purpose  sev- 
eral cases  were  cited,  which  are  taken  notice  of  in  the  case  of  Harvey 
v.  Aston,  and  which  I  shall  not  repeat,  but  refer  to  that  case  for 
them."  Accepting  that  as  law  with  respect  to  legacies  of  personal 
estate  on  a  condition,  the  question  remains  whether  this  is  a  legacy 


Ch.  6)  ILLEGAL  AND   IMPOSSIBLE   CONDITIONS  715 

on  a  condition.  If  not,  then,  upless  it  can  be  shown  that  the  rule  of  the 
civil  law  extends  to  limitations  as  well  as  to  conditions,  and  that  our 
law  has  adopted  it  to  that  extent,  the  rule  cannot  apply.  Is  there  here 
a  condition?  In  one  sense  the  gift  does  contain  a  condition,  but  it 
contains  something  more  than  either  a  condition  precedent  or  a  con- 
dition subsequent,  and  must  be  held  to  create  a  limitation.  If  the  sub- 
ject of  gift  here  had  been  real  estate,  this  would  have  been  a  limita- 
tion, not  a  mere  condition,  just  as  a  gift  to  a  woman  dum  sola  vixerit 
is  a  conditional  limitation,  not  a  mere  condition.  But  why  should  that 
be  held  to  be  a  mere  condition  in  the  case  of  personalty  which  is  not 
so  in  the  case  of  realty?  Here  the  sister's  living  apart  from  her  hus- 
band is  the  measure  of  the  gift  to  her,  and  if  that  be  taken  away,  the 
quantum  of  the  gift  is  altered.  This  was  the  ground  taken  by  Mr. 
Justice  Kay.  No  authority  has  been  cited  to  show  that  limitations  are 
treated  by  the  civil  law  in  the  same  way  as  conditions,  but  if  they  were 
it  would  not  follow  that  they  should  be  so  treated  in  our  courts.  This 
is  a  gift  which  begins  when  the  sister  begins  to  live  apart  from  her 
husband,  continues  while  she  lives  apart  from  him,  and  comes  to  an 
end  when  she  ceases  to  live  apart  from  him. 

As  regards  the  cases  cited,  Tennant  v.  Braie,  Toth.,  ed.  1820,  p.  78, 
is  a  case  of  a  gift  upon  condition,  though  it  is  so  meagrely  reported 
that  I  should  hesitate  before  acting  upon  it.  Brown  v.  Peck,  1  Eden, 
140,  appears  to  have  been  compromised  after  an  expression  of  opinion 
by  the  court.  Wren  v.  Bradley,  2  De  G.  &  Sm.  49,  is  a  peculiar  case. 
There  were  two  gifts,  the  first  of  which  was  clearly  a  gift  on  condi- 
tion ;  the  second  gift  is  more  difficult.  I  think  that  the  Vice-Chancel- 
lor  considered  the  context  of  the  will  to  throw  light  on  the  second  gift, 
and  to  lead  to  the  conclusion  that  it  was  a  gift  to  a  woman  who  was 
at  the  time  living  separate  from  her  husband,  with  a  condition  defeat- 
ing it  if  she  returned  to  cohabitation.  The  cases  therefore  do  not 
support  the  view  that  the  doctrine  of  the  civil  law  is  to  be  extended 
to  limitations,  and  in  my  opinion  the  judge  below  came  to  a  right  con- 
clusion. One  regrets  taking  away  a  dead  man's  bounty  from  the  ob- 
ject of  it  under  the  very  circumstances  in  which  he  intended  her  to 
have  it,  but  we  must  not  depart  from  the  law. 

Fry,  L.  J.    I  am  of  the  same  opinion. 


716  ILLEGAL  CONDITIONS  AND  RESTRAINTS  (Part  5 

CARTER'S  HEIRS  v.  CARTER'S  ADM'RS. 
(Supreme  Court  of  Alabama,  1SG5.    39  Ala.  579.)  s 

Appeal  from  the  Probate  Court  of  Clarke. 

On  the  30th  July,  1863,  a  petition  was  iiled  in  said  court  by  Benjamin 
W.  Carter,  on  behalf  of  himself  and  several  other  persons,  as  heirs  at 
law  and  next  of  kin  of  Claiborne  Carter,  deceased,  alleging  that  certain 
provisions  of  the  latter's  will  were  void,  and  praying  that  on  the  final 
settlement,  all  the  property  of  the  estate  might  be  divided  among  them. 

The  provisions  of  the  will  of  Claiborne  Carter  which  were  alleged 
to  contain  the  invalid  gift  were  as  follows : 

"After  paying  all  my  debts  and  funeral  expenses,  I  give,  bequeath, 
and  devise,  unto  Francis  B.  James,  Maria  C,  James,  and  Robert  D. 
James,  Jr.,  children  of  Robert  D.  James,  all  my  estate,  real  and  personal ; 
to  have  and  to  hold  the  same,  after  my  death,  forever ;  on  this  condi- 
tion nevertheless,  that  the  said  Robert  D.  James  do,  immediately  after 
my  death,  manumit  and  set  free  seven  certain  negro  children  owned  by 
him,  and  now  in  his  possession  in  Clarke  county,  to-wit :  John,  Wesley, 
and  Albert,  yellow  boys,  and  also  Milly,  Mary,  and  Alabama  (all 
brothers  and  sisters,  and  children  of  Ellen,  now  dead,)  and  Ellen,  a 
child  of  said  Milly,  and  also  all  the  children  that  any  of  the  said  negroes 
may  hereafter  have.  And  if  said  Robert  D.  James  shall  fail  to  give 
the  said  negroes  their  freedom,  as  far  as  the  laws  of  the  State  will 
permit,  or  so  that  they  may  enjoy  their  liberty,  and  the  profits  and  re- 
sults of  their  own  work  and  labor;  or  should  said  slaves  be  kept  at 
work,  against  their  own  will,  after  my  death ;  or  should  they  ever  be 
sold,  carried  away,  or  in  any  way  disposed  of,  either  by  said  James,  his 
children,  heirs,  creditors,  or  any  one  claiming  under  or  through  him, 
so  tliat  they  are  deprived  of  liberty  of  working  for  themselves,  and  of 
disposing  as  they  please  of  their  own  time,  under  the  laws  of  the  State ; 
or  should  they  hereafter  ever  be  taken  for  the  debts  of  any  of  the 
children  of  said  James,  or  their  heirs,  and  put  into  a  state  of  slavery, 
— then  this  devise  and  bequest  to  be,  and  in  that  event  is  hereby  declar- 
ed to  be,  utterly  void,  and  all  my  estate  is  to  revert  to  my  next  of  kin 
and  legal  heirs.  The  true  intent  of  this  will  is,  to  give  all  my  property 
for  the  liberty  and  freedom  of  the  said  negroes,  so  that  they  may  enjoy 
the  same  as  far  as  the  law  of  the  land  will  allow,  and  good  conscience, 
honesty  and  right  will  protect.  And  I  do  make  and  constitute  the  said 
donees,  Frank,  Maria,  and  Robert,  agents  and  guardians  of  said  ne- 
groes, to  see  to  and  protect  them  in  their  liberty  and  rights ;  and  if  ei- 
ther the  said  Frank,  Maria,  or  Robert  die,  this  power  is  to  go  to  the 
survivor  thereof.     If  either  of  the  donees,  Frank,  Robert  or  Maria, 

5  statement  of  the  case  is  abridged.  Only  so  much  of  the  opinion  is 
given  as  relates  to  the  validity  of  the  will. 


Ch.  6)  ILLEGAL   AND   IMPOSSIBLE   CONDITION'S  717 

die  before  me,  then  the  survivors  thefeof  who  may  be  living  at  my 
death  shall  take  under  this  w^ill." 

The  administrators  filed  an  answer  to  the  petition,  denying  among 
other  things  the  invalidity  of  the  provisions  of  the  will,  and  setting  up 
the  division  and  distribution  of  the  property  under  the  order  of  the  Pro- 
bate Court.  The  court  dismissed  the  petition  of  the  distributees  and 
heirs  at  law ;  to  which  they  reserved  a  bill  of  exceptions,  and  which 
they  now  assign  as  error. 

Stone:,  J.  The  rule  in  regard  to  void  conditions  is  too  well  settled 
to  require  elaboration.  If  the  void  condition  be  precedent,  it  defeats  the 
whole  instrument  or  conveyance.  If  it  be  subsequent,  the  conveyance 
stands,  and  the  condition  alone  is  defeated.  See  2  Story's  Equity,  § 
1306;  Weathersby  v.  Weathersby,  13  Smedes  &  M.  (Miss.)  685  ;  1  Jar- 
man  on  Wills,  806  et  seq. 

The  clause  of  Claiborne  Carter's  will,  which  raises  the  issue  in  this 
cause,  presents  the  case  of  a  conditional  testamentary  disposition. 
Some  of  the  conditions  we  regard  as  precedent,  and  some  as  subse- 
quent; that  is,  the  will  requires  certain  things  to  be  done  before  its 
dispositions  take  effect,  and  provides  that  certain  other  things,  done  or 
suffered  after  the  will  by  its  terms  takes  effect,  shall  divest  the  title 
out  of  the  beneficiaries  therein  named.  To  prove  the  correctness  of 
this  view,  let  us  suppose,  that  after  Claiborne  Carter  made  his  will, 
no  responsive  or  corresponding  provision  had  been  made  by  Robert  D. 
James,  or  those  claiming  under  him ;  that  he  and  they  had  remained 
entirely  silent  as  to  any  and  all  disposition  of  the  seven  negro  children, 
John,  Wesley,  &c.  All  will  admit  that,  in  such  case,  the  children  of 
Robert  D.  James  never  would  have  taken  under  the  will  of  Claiborne 
Carter.  The  primary  condition  was  to  precede  the  vesting  of  the  devise 
and  bequest;  and  it  was  to  take  effect  immediately  after  the  death  of 
Claiborne  Carter.  The  language  of  the  will  is :  'T  give,  bequeath,  and 
devise,  unto  Francis  B.  James,"  &c.,  "all  my  estate,  real  and  personal; 
to  have  and  to  hold  the  same,  after  my  death,  forever;  on  this  condi- 
tion nevertheless,  that  the  said  Robert  D.  James  do,  immediately  after 
my  death,  manumit  and  set  free  seven  certain  negro  children,"  &c. 
These  words  have  all  the  properties  of  a  condition  precedent. 

There  is  some  obscurity  in  the  language  of  Claiborne  Carter's  will, 
caused  by  the  words,  "as  far  as  the  laws  of  the  State  will  permit,"  and 
"as  far  as  the  laws  of  the  land  will  allow."  We  have  carefully  consid- 
ered the  clause  under  discussion,  and  come  to  the  conclusion,  that  these 
words  were  inserted  to  meet  the  obstacles  which  the  law  interposed  to 
the  absolute  emancipation  of  the  seven  negro  children.  There  are 
other  conditions,  which  we  think  these  words  do  not  qualify  or  limit. 
Of  this  class  we  consider  the  following:  "So  that  they"  [the  negroes] 
"may  enjoy  their  liberty,  and  the  profits  and  results  of  their  own  work 
and  labor."     We  think  the  testator  clearly  intended  that  the  privilege 


718  ILLEGAL   CONDITIONS  AND   RESTRAINTS  (Part   5 

here  provided  for — namely,  that  of  enjoying  their  own  Hberty,  and  the 
profits  of  their  labor — was  to  be  the  least  condition  on  which  the  chil- 
dren of  Robert  D.  James  were  to  take  under  his  (Carter's)  will. 

The  argument,  then,  leads  to  this :  The  devise  and  bequest  were  to 
take  effect  only  on  the  alternate  conditions  precedent — namely,  that  the 
seven  negro  children  were  to  be  emancipated ;  or,  failing  in  that,  they 
were  to  enjoy  their  liberty  and  the  profits  of  their  labor.  Each  of  these 
conditions  is  violative  of  the  positive  law  of  the  land.  At  the  time  this 
will  took  effect  by  the  death  of  the  testator,  both  the  constitution  and 
statute  of  the  State  inhibited  the  emancipation  of  slaves.  See  Acts 
1859-60,  p.  28 ;  Constitution  of  Alabama,  art.  6,  title  Slavery,  §  1.  And 
our  statute  and  the  policy  of  the  law  also  forbade  that  slaves  should  en- 
joy their  liberty  and  the  profits  of  their  labor.  It  is  the  policy  of  our 
law  that  slaves  shall  remain  under  the  direction  and  control  of  their 
owner,  and  not  go  at  large.  They  cannot  enjoy  their  liberty  and  the 
profits  of  their  labor,  without  violating  section  1005  of  the  Code,  except 
in  the  mode  for  which  that  section  provides ;  and  there  is  no  pretense 
that  the  clause  of  this  will  contemplates  the  license  which  that  section 
tolerates. 

It  results  from  what  we  have  said,  that  the  dispositions  of  Claiborne 
Carter's  will,  in  favor  of  the  children  of  Robert  D.  James,  are  inop- 
erative, because  they  depend  on  a  condition  precedent  which  is  illegal 
and  void. 

Having  construed  Claiborne  Carter's  will,  we  feel  bound  to  declare, 
that  the  probate  court  rightly  dismissed  the  petition  in  this  case.  The 
property  had  been  divided  under  the  will,  on  the  basis  that  its  disposi- 
tions are  valid.  The  property,  under  that  division,  has  passed  into  other 
hands,  and  is  beyond  the  reach  or  control  of  the  administrators,  and  of 
any  process  the  probate  court  can  issue.  The  administrators,  being 
the  actors,  and  parties  to  the  division,  cannot  re-possess  themselves  of 
the  property.  Pistole  v.  Street,  5  Port.  64 ;  Wier  v.  Davis,  4  Ala.  442 ; 
Dearman  v.  Dearman,  4  Ala.  521;  Fambro  v.  Gantt,  12  Ala.  298; 
Ventress  v.  Smith,  10  Pet.  161,  9  L.  Ed.  382;  1  Story's  Equity,  §§  90^ 
92.  The  remedy  of  the  heirs-at-law  and  next  of  kin  of  Claiborne  Car- 
ter is  in  chancery.     Hunley  v.  Hunley,  15  Ala.  91. 

The  decree  of  the  probate  court  is  affirmed.® 

6  See,  also,  Ransrlell  v.  Boston,  172  111.  439,  50  N.  E.  Ill,  43  L.  R.  A.  526 
(1898) — real  estate  involved. 


Ch.  6)  ILLEGAL  AND   IMPOSSIBLE   CONDITIONS  719 


In  re  HAIGHT. 

(Supreme  Court  of  New  York,  Appellate  Division,  Second  Department,  1900. 
51  App.  Div.  310,  M  N.  Y.  Supp.  1029.) 

Appeal  by  Benjamin  Haight,  a  legatee  under  the  last  will  and 
testament  of  Augustus  Holly  Haight,  deceased,  from  an  order  of 
the  Surrogate's  Court  of  the  county  of  Orange,  entered  in  said  Sur- 
rogate's Court  on  the  23d  day  of  January,  1899,  denying  his  motion 
to  amend  a  decree  of  said  Surrogate's  Court,  entered  in  said  court 
on  the  10th  day  of  November,  1880,  and  to  require  Edward  Haight, 
as  trustee,  etc.,  of  Augustus  Holly  Haight,  deceased,  to  pay  over  to 
him  all  the  income  of  the  residuary  estate  held  in  trust  for  said  Benja- 
min Haight,  and  also  from  a  decree  bearing  date  the  26th  day  of  June, 
1899,  and  entered  in  said  Surrogate's  Court,  overruling  his  objections 
to  the  intermediate  accounting  of  Edward  Haight,  as  trustee,  and  set- 
tling the  accounts  of  said  trustee. 

HiRSCHBKRG,  J.  Augustus  Holly  Haight  died  on  the  10th  day  of 
April,  1879,  leaving  a  will  and  codicil  which  were  admitted  to  probate 
in  Orange  county  on  the  eighth  day  of  May  following.  He  named 
Louis  Haight,  Edward  Haight  and  James  G.  Roe  executors  and 
trustees,  and  letters  testamentary  were  duly  issued  to  them.  They 
thereafter  filed  an  account  in  the  Surrogate's  Court,  and  a  decree  was 
rendered  on  such  accounting  on  the  10th  day  of  November,  1880. 
Louis  Haight  died  in  1894  and  James  G.  Roe  in  1896,  and  Edward 
Haight  has  since  acted  as  sole  trustee.  He  has  presented  an  inter- 
mediate account  of  his  proceedings,  and  the  same  has  been  settled 
by  the  surrogate  of  Orange  county  in  a  decree  dated  January  23, 
1899.  The  testator  left  no  widow  and  but  one  child,  Benjamin 
Haight,  and  these  appeals  are  taken  by  Benjamin  from  the  last  decree, 
and  from  an  order  denying  his  motion  to  amend  and  modify  the  first 
decree  in  so  far  as  it  limited  his  right  to  the  income  of  the  estate  to  the 
sum  of  $2,000  per  annum,  and  to  require  the  payment  to  him  of  all  of 
said  income. 

Among  other  bequests  the  testator  gives  to  his  executors  the  sum  of 
$8,000  in  trust  for  his  sister,  Sarah  J.  Smith,  during  life,  and  the 
sum  of  $8,000  in  trust  for  Maria  Crassous  during  life,  the  principal 
in  each  instance  to  revert  to  the  residue  of  the  estate  on  the  death 
of  the  beneficiary.  The  will  contains  this  provision  for  the  testa- 
tor's son:  "All  the  rest,  residue  and  remainder  of  my  estate,  both 
real  and  personal,  I  give,  devise  and  bequeath  to  my  executors,  herein- 
after named,  in  trust  however,  and  to  and  for  the  following  uses  and 
purposes,  namely :  to  invest  the  same  and  to  keep  the  same  invested, 
and  to  pay  the  income  therefrom  to  my  son,  Benjamin  Haight,  for  and 
during  the  term  of  his  natural  life;  but  it  is  my  will  that  so  long 
as  the  present  wife  of  my  said  son  shall  be  living  and  he  shall  be  law- 


720  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  5 

fully  bound  to  her  as  a  husband,  the  income  to  be  paid  to  my  said 
son  shall  not  exceed  the  sum  of  two  thousand  dollars  in  any  one  year ; 
and  that  in  case  of  the  death  of  said  wife,  or  in  case  of  his  ceasing  to 
be  bound  to  her  as  a  lawful  husband,  then  the  whole  of  said  income  is 
to  be  paid  over  to  my  said  son  during  his  natural  life." 

No  disposition  is  made  by  the  will  of  the  annual  income  which  shall 
be  in  excess  of  $2,000  during  the  life  of  Benjamin  Haight's  wife  and 
the  continuance  of  their  marriage  relations ;  but  on  the  death  of  the 
son  leaving  a  child  or  children  surviving,  the  executors  are  directed 
to  apply  the  income  to  the  maintenance,  support  and  education  of 
such  child  or  children  during  minority,  and  to  pay  over  the  princi- 
pal equally  to  each  child  on  the  attainment  of  its  majority;  and 
should  the  son  die  without  leaving  a  child  surviving  and  attaining 
the  age  of  twenty-one  years,  then  the  estate  is  to  be  paid  in  equal 
shares  to  the  children  of  the  testator's  brother  and  sister. 

Benjamin  Haight  married  on  the  21st  day  of  August,  1877,  and 
the  will  was  made  two  days  afterward.  At  the  time  of  the  first  set- 
tlement and  for  several  years  afterward  the  income  of  the  residue  did 
not  amount  to  $2,000  a  year;  but  during  a  few  years  past  it  has 
been  slightly  in  excess  of  that  sum,  and  the  excess  is  expected  to 
increase  in  consequence  of  the  termination  of  the  trusts  for  the  bene- 
fit of  the  testator's  sister  and  of  Maria  Crassous.  The  former  died 
July  2,  1891,  and  the  latter  Januai'y  16,  1899,  having  each  received 
the  income  of  the  respective  trusts  in  full,  without  any  deduction 
for  commissions.  By  the  decree  of  November  10,  1880,  the  execu- 
tors and  trustees  were  directed  to  pay  the  income  arising  from  the 
residue  of  the  estate,  less  commissions,  to  Benjamin  Haight  to  the 
amount  of  $2,000  per  year,  in  the  words  of  the  decree  "as  long  as 
the  present  wife  of  the  said  Benjamin  Haight  shall  live,  or  as  long 
as  the  said  Benjamin  Haight  shall  be  law'fully  bound  to  her  as  a  hus- 
band; and  in  case  of  the  death  of  the  said  wife,  or  in  case  said  Benja- 
min Haight  shall  cease  to  be  bound  to  her  as  a  husband,  then  said 
executors  are  hereby  ordered  and  directed  to  pay  over  to  said  Benja- 
min Haight  the  whole  of  the  interest  and  income  arising  from  said  rest 
and  residue  for  and  during  the  term  of  his  natural  life."  Benjamin 
Haight  was  a  party  to  the  proceedings  on  the  first  accounting,  was 
then  of  full  age,  and  no  appeal  was  ever  taken  from  the  decree. 

The  appellant  insists  that  the  provision  of  his  father's  will  which 
makes  his  enjoyment  of  the  whole  of  the  income  dependent  on  the 
termination  of  his  marriage  relations  is  void  as  in  contravention  of 
good  morals  and  public  policy,  and  that  he  may  now  raise  the  question 
notwithstanding  the  decree  of  November  10,  1880.  I  have  concluded 
that  he  is  correct  on  both  points.'' 

7  The  part  of  the  opiuion  which  deals  with  the  second  point  Is  oaiiitted. 


Ch.  6)  ILLEGAL  AND   IMPOSSIBLE   CONDITIONS  721 

As  to  the  first  point,  the  condition  must  be  held  void  if  its  manifest 
object  was  to  induce  Benjamin  Haight  to  take  such  steps  as  might  be 
necessary  in  order  that  he  should  cease  to  be  lawfully  bound  to  his 
wife  as  a  husband ;  in  other  words,  to  obtain,  or  provoke  and  so 
occasion,  a  legal  divorce  or  separation,  either  in  this  State  or  in  some 
other  jurisdiction.  If  any  other  and  innocent  construction  can  be 
placed  upon  the  condition,  it  is  of  course  to  be  adopted.  But  the 
will  was  made  directly  after  the  marriage  of  testator's  son,  and  the 
condition  must  be  regarded  as  made  in  hostility  to  that  union,  and  in 
the  hope  of  destroying  it  in  so  far  as  that  object  could  be  accomplished 
by  offering  money  by  way  of  a  premium  or  reward.  It  is  true  that  the 
condition  is  not  in  so  many  words  that  the  son  shall  procure  or  suffer 
a  divorce  in  order  to  entitle  him  to  the  entire  income,  but  the  precise 
effect  of  such  an  express  condition  is  produced  by  a  provision  which 
gives  him  the  entire  income  when  such  a  divorce  is  procured  or  suffered. 
If  the  former  offends  public  morals  and  contravenes  public  policy,  it  is 
difficult  to  see  why  the  latter  does  not  also.  "It  is  a  general  principle, 
well  settled,"  said  Mr.  Justice  Ingraham  in  Wright  v.  J\Iayer  (47  App. 
Div.  604,  606,  62  N.  Y.  Supp.  610),  "that  conditions  annexed  to  a  gift, 
the  tendency  of  which  is  to  induce  the  husband  and  wife  to  live  sepa- 
rate, or  to  be  divorced,  are,  upon  grounds  of  public  policy  and  public 
morals,  void."  In  Wilkinson  v.  Wilkinson  (L.  R.  [12  Eq.]  604)  the 
testatrix  gave  the  residue  of  her  property  to  her  niece,  with  a  direction 
that  all  interest  should  pass  under  the  will  as  upon  the  death  of  the 
niece,  should  she  not  cease  to  reside  in  Skipton  within  eighteen  months 
of  testatrix's  death.  The  husband  of  the  niece  resided  at  Skipton,  and 
the  court  considered  the  provision  to  be  a  manifest  attempt  to  induce 
the  legatee  to  leave  her  husband,  the  vice-chancellor  saying  (p.  608) : 
"The  condition  is  a  vicious  one,  and  that  being  so,  I  have  no  difficulty 
in  declaring  that  it  is  void."  In  Brown  v.  Peck  (1  Eden  Ch.  140)  the 
testator  provided  that  if  his  niece  lived  with  her  husband  she  should 
receive  two  pounds  per  month  from  the  estate,  but  if  she  lived  from 
him  and  with  her  mother  the  executors  should  allow  her  five  pounds 
per  month.  The  legacy  at  five  pounds  per  month  was  held  to  be  good, 
divested  of  the  condition,  the  latter  being  void  as  contra  bonos  mores. 
In  Tenant  v.  Braie  (Toth.  76)  the  same  disposition  was  made  of  a 
bequest  to  a  daughter,  conditioned  "if  she  will  be  divorced  from  her 
husband."  In  Conrad  v.  Long  (33  Mich.  78)  a  condition  annexed  to 
a  devise  was  held  void  which  was  to  take  effect  when  the  devisee 
"should  conclude  not  to  live  with  her  present  husband."  In  Whiton 
v.  Harmon  (54  Hun,  552,  8  N.  Y.  Supp.  119)  a  like  provision  was  held 
to  be  void,  the  devise  being  to  a  son  "for  and  during  the  term  of  his 
natural  life,  or  while  he  shall  live  separately  from  his  present  wife." 
(See,  also.  Potter  v.  McAlpine,  3  Dem.  Sur.  108,  cited  in  Whiton  v. 
Harmon,  supra,  555.)  In  O'Brien  v.  Barkley  (78  Hun,  609;  s.  c, 
4  Kales  Prop. — 46 


722  ILLEGAL  CONDITIONS  AND   RESTRAINTS  (Part  6 

fully  reported  in  28  N.  Y.  Supp.  1049)  the  authorities  on  the  subject 
are  collated  in  a  very  elaborate  and  able  opinion  by  Mr.  Justice  Kellogg. 
In  that  case  a  trust  created  for  testator's  daughter  for  life  "provided, 
however,  and  on  the  express  condition  that  she  do  not,  at  any  time 
after  my  decease,  associate,  cohabit  or  live"  with  her  husband,  was  de- 
clared to  be  wholly  void,  as  having  no  other  object  than  to  effectuate 
testator's  design  to  separate  the  husband  and  wife,  and  the  daughter, 
therefore,  took  the  life  estate  discharged  of  the  void  condition. 

In  the  light  of  these  decisions  and  the  many  cases  of  similar  import 
cited  in  the  opinions,  and  in  view  of  the  mischief  apprehended,  I  can 
but  conclude  that  there  is  no  difference  in  spirit  and  principle  between 
a  gift  made  expressly  dependent  upon  the  procurement  of  a  divorce, 
and  one  which  is  made  payable  only  in  the  event  of  a  divorce.  The 
one  invites  the  divorce  directly  and  in  terms,  while  the  other  incites 
it  by  the  offer  of  a  premium.  The  end  desired  by  the  donor  is  the 
same,  viz.,  to  induce  the  separation  or  divorce,  and  the  means  em- 
ployed must  be  regarded  as  objectionable  whatever  form  or  language 
may  be  employed,  so  long  as  it  is  apparent  that  the  sole  object  of 
the  donor  is  to  encourage  that  result,  and  the  means  employed  are 
calculated  to  promote  it. 

I  have  found  no  cases  to  the  contrary  of  the  principle  stated,  but  in 
Born  V.  Horstmann  (80  Cal.  452,  22  Pac.  169,  338,  5  L.  R.  A.  577)  and 
in  Thayer  v.  Spear  (58  Vt.  327,  2  Atl.  161)  provisions  similar  to  the  one 
under  consideration  were  held  valid,  where  made  for  the  benefit  of  a 
wife  to  meet  the  deprivation  of  support  incident  to  widowhood  or  to 
the  legal  termination  of  her  marital  relations.  In  each  case  increased 
financial  provision  was  made  by  will  for  a  daughter  in  the  event  of  her 
becoming- a  widow  or  otherwise  becoming  lawfully  separated  from  her 
husband.  The  courts  found  the  intention  to  be  in  each  case  only  to  pro- 
vide for  the  daughter  in  case  she  were  deprived  of  her  husband's  sup- 
port and  made  dependent  upon  her  own  resources,  whether  by  his  death 
or  as  the  result  of  a  lawful  divorce  or  separation.  The  manifest  object 
of  the  provision  was  not  to  induce  or  invite  a  divorce  or  separation, 
but  to  provide  for  the  widow  or  the  divorced  wife,  as  the  case  might 
be,  in  the  event  of  the  happening  of  either  calamity.  In  the  California 
case  the  court  said  (p.  459) :  "Not  only  may  there  be  a  good  and  suffi- 
cient reason  *  *  *  for  providing  that  the  legatee  shall  not  have  the 
bulk  of  the  property  until  she  is  deprived  of  the  support  of  a  husband, 
but  there  may  be  the  best  of  reasons  for  placing  the  same  in  such  con- 
dition that  she  cannot  be  improperly  induced  by  a  worthless  or  profli- 
gate husband  to  squander  it,  while  she  continues  to  be  his  wife,  and,  it 
may  be,  under  his  influence  and  control.  We  think  such  a  condition  in 
a  will  is  not  only  valid,  but  that,  under  certain  circumstances,  it  may  be 
just  and  commendable."  In  the  Vermont  case  the  court  said  (p.  329) : 
"The  first  object  is  to  ascertain,  if  possible,  what  the  intention  of  the 


Ch.  6)  ILLEGAL  AND  IMPOSSIBLE   CONDITIONS  723 

testatrix  was ;  and  we  find  no  difficulty  in  reaching  the  conclusion  that 
it  was  to  have  her  estate  disposed  of  just  as  it  has  been  by  the  Probate 
Court.  It  was  a  wise  and  prudent  provision  to  make  for  her  daughter. 
While  she  should  remain  a  wife,  her  husband  would  be  under  obliga- 
tion to  support  her,  and  hence  the  income,  only,  was  absolutely  left 
her  during  the  continuance  of  that  relation ;  but  when  she  should  cease 
to  be  a  wife,  and  so  become  dependent  upon  her  own  resources,  it 
was  just  and  wise  to  provide  that  she  should  have  the  entire  estate." 
Neither  the  reasoning  nor  the  legal  attitude  of  the  parties  concerned 
toward  each  other  renders  these  cases  controlling  or  influential  in  this 
instance.  The  increased  provision  is  made  in  the  case  at  bar  to  take 
effect  at  a  time  when  the  pecuniary  obligations  of  the  beneficiary  are 
lessened,  and  the  duty  of  support  which  the  husband  owes  the  wife  has 
no  reciprocal  existence.  The  cases  cited  are  analogous  to  Cooper  v. 
Remsen  (3  Johns.  Ch.  382),  where  a  legacy  was  upheld  which  was 
designed  to  provide  for  the  testator's  daughter  during  the  continuance 
of  a  separation  from  her  husband  actually  existing  at  the  time  of  the 
execution  of  the  will. 

If  the  condition  is  void,  it  follows  that  Benjamin  Haight  is  entitled 
to  the  entire  income.  This  is  so  whether  the  condition  be  regarded  as 
precedent  or  subsequent.  The  whole  estate  appears  to  be  invested  in 
personal  securities.  A  subsequent  void  condition  could  not,  of  course, 
destroy  an  estate  already  vested.  Assuming,  however,  that  the  con- 
dition is  precedent  in  its  character,  and  would,  therefore,  work  a 
forfeiture  of  the  gift  in  excess  of  $2,000  annually,  at  the  common  law, 
yet  in  equity  and  under  the  civil  law,  though  the  condition  is  void  the 
gift  is  good.  "With  respect  to  legacies  out  of  personal  estate,  the 
civil  law,  which  in  this  respect  has  been  adopted  by  courts  of  equity, 
differs  in  some  respects  from  the  common  law  in  its  treatment  of 
conditions  precedent ;  the  rule  of  the  civil  law  being  that  where  a  con- 
dition precedent  is  originally  impossible  *  *  *  or  is  illegal  as  in- 
volving malum  prohibitum,  the  bequest  is  absolute,  just  as  if  the  condi- 
tion had  been  subsequent."  (2  Jarm.  Wills  [6th  Am.  Ed.]  15.  See, 
also,  2  Williams,  Exrs.  [7th  Am.  Ed.]  1264.)  "When,  however,  the 
illegality  of  the  condition  does  not  concern  any  thing  malum  in  se,  but 
is  merely  against  a  rule  or  the  policy  of  law,  the  condition  only  is 
void,  and  the  bequest  single  and  good."    (1  Roper,  Leg.  757.)^ 

8  See  also  Hawke  v.  Euyart,  30  Neb.  149,  46  N.  W.  422,  27  Am.  St.  Rep. 
391  (1890)— real  estate  involved. 

With  regard  to  conditions  in  restraint  of  marriage,  and  conditions  not 
to  dispute  a  will,  see  elaborate  notes  in  6  Gray's  Cases  on  Property  (1st 
Ed.)  pp.  23-25 ;    Id.  (2d  Ed.)  pp.  31-33. 


INDEX 


[the  figures  refer  to  pages] 


ACCELERATION,  298. 

ACCUMUr^VTIONS, 

Rule  against  perpetuities  applied  to,  596. 

CHARITIES, 

Rule  against  perpetuities  applied  to,  578. 

CHATTELS,  REAL, 

Future  interests  in,  145. 

CLASSES, 

Determination  of,  257. 
Validity  of  limitations  to,  96. 

CONDITIONAL  ESTATES, 

Application  of  rule  against  perpetuities  to,  475. 

Forfeiture  of  estate  of  inheritance  on  failure  to  alienate,  607. 

Forfeiture  of  estate  of  inheritance  on  alienation,  597. 

Illegal  and  impossible  conditions,  703. 

Illegal  conditions,  497. 

Mode  of  perfecting  a  forfeiture  of,  10. 

Relief  against  forfeiture  of, 

By  license,  12. 

By  waiver,  15. 

In  equity,  24. 
Validity  and  construction,  1. 
Who  may  take  advantage  of  the  breach  of  condition,  5. 

CONT)ITIONAL   LIMITATIONS,   37. 

CONDITIONS, 

Continuing  breach,  23. 

Implied  in  case  of  leaseholds  that  tenant  shall  not  repudiate  tenancy,  2. 
Implied  in  law,  2. 

Limitation  upon  suit  for  breach  of,  24. 

I'recedent  to  the  taking  effect  of  executory  devises  and  bequests,  279. 
Relief  in  equity  for  breach  of,  24. 

Tending  to  produce  separation  of  husband  and  wite,  706. 
CONSTRUCTION, 
Acceleration,  298. 
Divesting  contingencies  and  conditions  precedent  to  the  taking  effect  of 

executory  devises  and  bequests,  279. 
Effect  of  failure  of  preceding  interests  for  remoteness,  297. 
Gifts  implied  in  default  of  appointment,  344. 
Implication  of  cross-limitations,  256. 
Limitations  to  classes,  257. 
Meaning  of  "heirs"  in  a  limitation   to  testator's  "heirs"  or  the  "heirs" 

of  a  living  person,  190. 
Principles  of,  184. 

Remainders  whether  vested  or  contingent,  66. 
"Survivor"  construed  "other,"  197. 
Vesting  of  legacies,  204. 

4  Kales  Prop.  (72.5) 


726  INDEX 

[The  figures  refer  to  pages]  '^ 

CONSTRITTIOX— Continued, 

What  words  exercise  a  power,  879. 

Words  of  limitation  distinguished  from  words  of  condition,  10. 

CONTINGENT  REMAINDERS, 

Alienability  of.  81. 

By  execution  sale,  SS. 
Application  of  rule  against  perpetuities  to,  4S5. 
Distinction  between,  and  vested.  66. 
Conveyance  of,  set  aside  in  equity,  88. 
Descent  of,  82. 
Destructibility  of,  41. 
Extinguishment  of.  by  release.  87. 
Forfeiture  on  alienation  of,  606. 
Partition  of,  95. 
Validity  of,  41. 

CROSS-LIMITATIONS, 
Implication  of,  256. 

DESCENT. 

Of  contingent  remainders,  86. 

DESTRI'CTIBILITY,  RULE  OF, 

Applied  to  contingent  remainders,  see  Contingent  Remainders. 
Whether  applicable  to  interests  after  a  freehold  which  may  take  effect  as 
a  remainder  or  as  a  shifting  future  interest,  55,  536. 

DEVICE, 

Of  right  of  entry  for  condition  broken,  10. 

EQUITY, 

Relief  against  forfeiture,  24. 

Setting  aside  conveyance  of  future  interest  in,  88. 

ESCHEAT,  26. 

ESTATES, 

On  condition,  see  Conditional  Estates. 
Of  inheritance. 

Forfeiture  on  alienation  of,  597. 

Forfeiture  on  failure  to  alienate,  607. 
Indestructible  trusts  of.  695. 
Restraints  on  alienation  of,  648. 
Spendthrift  trusts  of,  657. 
Fee  simple, 

Power  to  dispose  of  by  life  tenant,  401. 
Fee  tail. 

Interests  subject  to,  and  the  rule  against  perpetuities,  562. 
For  life. 

Forfeiture  on  alienation  of,  636. 

Power  of  life  tenant  to  dispose  of  fee,  401. 

Restraint  on  alienation  of,  662. 
For  years. 

Forfeiture  on  alienation  of,  636. 

Future  interests  in,  145. 

Implied  condition  that  tenant  will  not  repudiate  tenancy,  2. 

Restraint  on  alienation  of,  662. 

EXECUTION  SALE, 

Inalienability  of  contingent  remainder  by,  88. 

EXECUTORY  DEVISE,  38,  58,  97,  107,  145. 

Construction  of  divesting  contingencies  and  conditions  precedent  to  the 

taking  effwt  of,  279. 
Effect  on,  of  failure  of  preceding  interest,  292. 


INDEX  727 

[Tbe  figures  refer  to  pages] 

EXECUTORY  DEYISE-Continued, 

Effect  of  failure  of,  on  preceding  interest,  279. 

Extinguishment  of,  by  release,  87. 

Gift  over  on  intestacy  and  failure  to  alienate,  607. 

EXECUTORY  INTERESTS,  30. 

Not  vested  or  contingent,  but  certain  to  take  effect,  204. 

FEE  SEVIPI.E,  see  Estates. 

FORFEITURE, 

Mode  of  perfecting,  where  estate  conditional,  10. 

Of  estates  of  inheritance  on  failure  to  alienate,  GOT. 

Of  estates  of  inheritance  on  alienation,  597. 

On  alienation  of  estates  for  life  or  years,  6.36. 

Relief  from,  by  license,  waiver,  and  in  equity,  12,  24. 

FREEHOLD   INTERESTS   SUBJECT  TO  A  TERM, 

Distinction  between  and  reversions  and  remainders,  104. 
Validity  of,  103. 

FUTURE  INTERESTS,  see  Table  of  Contents. 
Conveyance  of.  when  set  aside  in  equity,  88. 
Extinguishment  of,  by  release,  87. 

GIFTS  OVER, 

Upon  the  death  of  a  previous  taker,  235. 

On  failure^  of  issue,  245. 

On  intestacy  or  failure  to  alienate,  607. 

HEIRS, 

Meaning  of,  in  limitation  to  testator's  "heirs"  or  "heirs"  of  a  living  per- 
son, 190. 

ILLEGAL  CONDITIONS  AND  RESTRAINTS, 
Forfeiture  of  estates  of  inheritance. 

On  alienation,  .597. 

On  failure  to  alienate,  607. 
Forfeiture  on  alienation  of  estates  for  life  or  for  years,  636. 
Illegal  and  impossible  conditions,  703. 
Indestructible  trusts  of  absolute  and  indefeasible  equitable  interests,  695. 

Rule  making  void,  distinguished  from  rule  against  perpetuities,  497. 
Restraint  on  alienation  of  estates  of  inheritance,  648. 
Restraint  on  alienation  of  estates  for  life  and  years,  662. 

IMPLICATIONS. 

Gifts  by,  256,  344. 

ISSUE, 

Gift  on  failure  of,  245. 

LAPSE, 

Of  powers,  356. 

LEGACIES, 

Vesting  of,   204. 

LIFE  ESTATE,  see  Estates. 

LIMITATIONS  TO  CLASSES, 

Determination  of  the  class,  257. 

Rule  against  perpetuities  applied  to,  519. 

Validity  of,  96. 

MARRIED  WOMEN, 

Clauses  against  anticipation  and  the  rule  against  perpetuities,  497. 
Restraints  on  alienation  of  separate  estate  of,  650. 
Spendthrift  trusts  for,  690. 


728  INDEX 

[The  figures  refer  to  pages] 

MODIFYING  CLAUSES, 

Effect  of,  in  applying  the  rule  against  perpetuities,  557. 

PARTITION. 

Of  contingent  remainders,  95. 

PERSONAL  PROPERTY. 
Future  intei'ests  in,  145. 

POSSIBILITIES  OF  REVERTER,  26. 

POSSIBILITY  ON  A  POSSIBILITY,  RULE  AGAINST,  456. 

POWERS, 

Appointed  property  as  assets,  357. 

Appointments  in  fraud  of  power,  315. 

Contracts  to  appoint,  315. 

Defective  execution  of,  365. 

Gift  in  default  of  appointment,  344. 

Illusory  appointments,  332. 

In  trust,  344. 

In  life  tenants  to  dispose  of  the  fee,  401. 

Lapse  of,  356. 

Nonexclusive,  332. 

Operation,  classification,  release  and  discharge  of,  301. 

Operation  of,  357. 

Rule  against  perpetuities  applied  to,  563. 

Survival  of,  .333.  / 

What  words  exercise,  379. 

RELEASE, 

Extinguishment  of  future  interests  in,  87. 
Of  powers,  301. 

REMAINDERS,  see  Freehold  Interests  Subject  to  a  Term. 
Conveyance  of.  set  aside  in  equity,  88. 
Contingent,  see  Contingent  Remainders. 
Extinguishment  of,  by  release.  87. 
Forfeiture  on  alienation  of,  606. 
Implication  of  cross,  256. 
Miscellaneous  legal  consequences  which  depend  upon  the  character  of  the 

remainder,  95. 
Vested,  definition  of,  32. 

RESTRAINTS  ON  ALIENATION,  see  Illegal  Conditions  and  Restraints. 
Rule  making  void,  distinguished  from  rule  against  perpetuities,  497. 

REVERSIONS,  30. 

Conveyance  of,  set  aside  in  eijuity,  88. 
REVERTER, 

Possibilities  of,  26. 

RIGHTS  OF  ENTRY  FOR  CONDITION  BROKEN,  see  Conditional  Estates. 
How  far  assignable,  7. 
How  far  devisable,  10. 

RULE  AGAINST  PERPETUITIES,  95. 

Accumulations,  Si^K). 

Applied  to  interests  after  estates  tail,  562. 

Charities,  578. 

Corollaries  to,  408. 

Distinguished  from  rule  which  makes  void,  restraints  on  alienation  and 

provisions  requiring  a  trusteeship  (otherwise  valid)  to  be  effective  at  too 

remote  a  time.  497. 
Independent  gifts,  533. 
Interests  subject  to  the  rule,  40L 


INDEX  729 

[The  figures  refer  to  pages] 

RULE  AGAINST  PERPETUITIES -Continued, 
Limitations  to  classes.  519. 
Modifying  clauses,  557. 
Powers,  56.3. 
Separable  limitations,  533. 

SHELLEY'S  CASE, 

Rule  in,  110. 

SHIFTING  FUTURE  INTERESTS,  32. 

Gift  over  on  intestacy  and  failure  to  alienate,  GOT. 

SPECIFIC  PERFORMANCE   IN   EQUITY, 

Right  to,  how  far  subject  to  rule  against  perpetuities,  461,  490. 

SPENTDTHRIFT  TRUSTS. 

Of  estates  for  life.  678. 

Of  estates  of  inheritance,  657. 

SPRINGING  FUTURE  INTERESTS,  32. 

"SURVIVOR"   CONSTRUED  "OTHER,'   197. 

TRUSTS, 

Indestructible, 

Of  absolute  and  indefeasible  equitable  interests,  695. 

Rule  making  void,  distinguished  from  rule  against  perpetuities,  497. 

Spendthrift,  657,  678. 

VESTING,  see  Legacies;    Remainders. 

WILD'S  CASE,  RULE  IN,  96. 


WEST  PUBLISHINO  CO.,   PKINTEBS,    ST.  PACL,   MINN. 


University  of  California  Library 
Los  Angeles 

This  book  is  DUE  on  the  last  date  stamped  below. 


MAY  1 3  2000 


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